Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has previously exercised its right to redeem the Securities in accordance with their respective terms, each Holder of Securities of such series will have the right to require the Issuer to purchase all or a portion of such Holder’s Securities pursuant to the offer described below (the “Change of Control Offer”), at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase, subject to the rights of Holders of the Securities on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following the date upon which the Change of Control Triggering Event occurred, or at the Issuer’s option, prior to any Change of Control, but after the public announcement of the pending Change of Control, the Issuer shall send, by first class mail, a notice to each Holder of Securities of such series, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute the Change of Control and shall state: (i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture; (ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on the date specified in such notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, other than as may be required by law (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009; (iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date; (iv) that any Security not tendered or accepted for payment shall continue to accrue interest; (v) that Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date; (vi) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased; (vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior to the Change of Control Payment Date; (viii) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and (ix) the CUSIP number, if any, printed on the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall not be required to make a Change of Control Offer if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer and such third party purchases all corresponding Securities of such series properly tendered and not withdrawn under its offer. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that any securities laws or regulations conflict with the provisions of this Section 1009, the Issuer shall comply with the applicable securities laws and regulations and shall be deemed not to have breached its obligations under this Indenture by virtue thereof.
Appears in 35 contracts
Samples: Indenture (Amcor PLC), Indenture (Amcor PLC), Indenture (Amcor Flexibles North America, Inc.)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series (1) In the event that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event there shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such series) in accordance with this Section 1009. Upon the occurrence of occur a Change of Control Triggering Event, unless except as otherwise provided in Section 3.03(6) hereof, the Issuer has previously exercised its right Company shall make an offer to redeem the Securities in accordance with their respective terms, each Holder of Securities of such series will have the right to require the Issuer to purchase all or a portion of such Holder’s Securities pursuant to the offer described below Notes (the “Change of Control Offer”), ) to purchase all or any part of such Holder’s Notes at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, interest to the date of purchase, subject to purchase (the rights “Change of Holders of Control Purchase Price”) in accordance with the Securities on procedures set forth in this Section 3.03.
(2) On or before the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following the date upon which the thirtieth day after any Change of Control Triggering Event occurredEvent, or or, at the IssuerCompany’s option, prior to any Change of Control, but after the public announcement of the pending Change of Control, the Issuer Company shall sendbe obligated to make the Change of Control Offer by mailing, by first class mailor causing to be mailed, a notice to each Holder all Holders of Securities of such seriesNotes, with a copy to the Trustee, which a notice shall govern regarding the terms Change of Control Triggering Event and the Change of Control Offer. Such The notice shall describe state the transaction or transactions that constitute payment date for the Change of Control and shall state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture;
(ii) that the Issuer is required to offer to purchase all repurchase of the outstanding principal amount of Securities, the purchase price and, that on the date specified in such noticeNotes, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed. The notice may, other than as may be required by law (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall also state that the offer to purchase is conditioned on a Change of Control Offer is conditioned on the or Change of Control being consummated Triggering Event occurring on or prior to the payment date specified in the notice.
(3) On the payment date of the Change of Control Payment Date;Purchase Price as specified in the notice, the Company shall, to the extent lawful:
(ivA) that any Security not tendered or accepted accept for payment shall continue to accrue interest;
(v) that Securities accepted for payment all Notes or portions of Notes properly tendered and not withdrawn pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment DateOffer;
(viB) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, deposit with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior Paying Agent an amount equal to the Change of Control Payment Date;Purchase Price in respect of all Notes or portions of Notes properly tendered and not withdrawn pursuant to the Change of Control Offer; and
(viiiC) that Holders whose Securities are deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased only in part by the Company.
(4) The Paying Agent shall promptly mail to each Holder of Notes properly tendered pursuant to the Change of Control Offer, the Change of Control Purchase Price for such Notes, and the Trustee shall promptly authenticate and mail, or cause to be issued transferred by book entry, to each such Holder a new Securities Note equal in principal amount to the any unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ix) the CUSIP numberNotes surrendered, if any; provided that the new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as reasonably practicable after the payment date of the Change of Control Purchase Price.
(5) The Company will comply with applicable law, printed on including Section 14(e) of the Securities being repurchased Exchange Act and that no representation is made as Rule 14e-1 thereunder, and any other securities laws and regulations thereunder to the correctness or accuracy extent those laws and regulations are applicable in connection with the purchase of the CUSIP numberNotes as a result of a Change of Control or Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with this Section 3.03, if any, listed in the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 3.03 by virtue of such notice or printed on the Securities. conflict.
(6) The Issuer shall Company will not be required to make a Change of Control Offer after a Change of Control Triggering Event if (1) a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer Company and such third party purchases all corresponding Securities of such series Notes properly tendered and not withdrawn under its offer. The Issuer shall comply , (2) the Company has given notice to redeem all Notes in accordance with paragraph 4 of the requirements Notes and Article Three of Rule 14e-1 under the Exchange Act Base Indenture, unless and any other securities laws and regulations thereunder to until there is a default in payment of the extent such laws and regulations are applicable redemption price or (3) in connection with or in contemplation of any Change of Control for which a definitive agreement is in place, the Company or a third party has made an offer to purchase (an “Alternate Offer”) any and all Notes properly tendered at a cash price equal to or higher than the Change of Control Purchase Price and has purchased all Notes properly tendered and not withdrawn in accordance with the terms of such Alternate Offer.
(7) None of the provisions relating to a repurchase of Securities pursuant to upon a Change of Control Offer. To the extent that any securities laws or regulations conflict with the provisions of this Section 1009, the Issuer shall comply with the applicable securities laws and regulations and Triggering Event shall be deemed not to have breached its obligations under this Indenture waivable by virtue thereofthe Board of Directors of the Company.
Appears in 13 contracts
Samples: Sixth Supplemental Indenture (Horton D R Inc /De/), Sixth Supplemental Indenture (Horton D R Inc /De/), Sixth Supplemental Indenture (DRH Regrem LXV, LLC)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series (1) In the event that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event there shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such series) in accordance with this Section 1009. Upon the occurrence of occur a Change of Control Triggering Event, unless except as otherwise provided in Section 3.03(6) hereof, the Issuer has previously exercised its right Company shall make an offer to redeem the Securities in accordance with their respective terms, each Holder of Securities of such series will have the right to require the Issuer to purchase all or a portion of such Holder’s Securities pursuant to the offer described below Notes (the “Change of Control Offer”), ) to purchase all or any part of such Holder’s Notes at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, interest to the date of purchase, subject to purchase (the rights “Change of Holders of Control Purchase Price”) in accordance with the Securities on procedures set forth in this Section 3.03.
(2) On or before the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following the date upon which the thirtieth day after any Change of Control Triggering Event occurredEvent, or or, at the IssuerCompany’s option, prior to any Change of Control, but after the public announcement of the pending Change of Control, the Issuer Company shall sendbe obligated to make the Change of Control Offer by mailing, by first class mailor causing to be mailed, a notice to each Holder all Holders of Securities of such seriesNotes, with a copy to the Trustee, which a notice shall govern regarding the terms Change of Control Triggering Event and the Change of Control Offer. Such The notice shall describe state the transaction or transactions that constitute payment date for the Change of Control and shall state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture;
(ii) that the Issuer is required to offer to purchase all repurchase of the outstanding principal amount of Securities, the purchase price and, that on the date specified in such noticeNotes, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed. The notice may, other than as may be required by law (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall also state that the offer to purchase is conditioned on a Change of Control Offer is conditioned on the Change of Control being consummated Triggering Event occurring on or prior to the payment date specified in the notice.
(3) On the payment date of the Change of Control Payment Date;Purchase Price as specified in the notice, the Company shall, to the extent lawful:
(ivA) that any Security not tendered or accepted accept for payment shall continue to accrue interest;
(v) that Securities accepted for payment all Notes or portions of Notes properly tendered and not withdrawn pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment DateOffer;
(viB) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, deposit with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior Paying Agent an amount equal to the Change of Control Payment Date;Purchase Price in respect of all Notes or portions of Notes properly tendered and not withdrawn pursuant to the Change of Control Offer; and
(viiiC) that Holders whose Securities are deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased only in part by the Company.
(4) The Paying Agent shall promptly mail to each Holder of Notes properly tendered pursuant to the Change of Control Offer, the Change of Control Purchase Price for such Notes, and the Trustee shall promptly authenticate and mail, or cause to be issued transferred by book entry, to each such Holder a new Securities Note equal in principal amount to the any unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ix) the CUSIP numberNotes surrendered, if any; provided that the new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as reasonably practicable after the payment date of the Change of Control Purchase Price.
(5) The Company will comply with applicable law, printed on including Section 14(e) of the Securities being repurchased Exchange Act and that no representation is made as Rule 14e-1 thereunder, and any other securities laws and regulations thereunder to the correctness or accuracy extent those laws and regulations are applicable in connection with the purchase of the CUSIP numberNotes as a result of a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with this Section 3.03, if any, listed in the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 3.03 by virtue of such notice or printed on the Securities. conflict.
(6) The Issuer shall Company will not be required to make a Change of Control Offer after a Change of Control Triggering Event if (a) a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer Company and such third party purchases all corresponding Securities of such series Notes properly tendered and not withdrawn under its offer. The Issuer shall comply , (b) the Company has given notice to redeem all Notes in accordance with paragraph 4 of the requirements Notes and Article Three of Rule 14e-1 under the Exchange Act Base Indenture, unless and any other securities laws and regulations thereunder to until there is a default in payment of the extent such laws and regulations are applicable redemption price or (c) in connection with or in contemplation of any Change of Control for which a definitive agreement is in place, the Company or a third party has made an offer to purchase (an “Alternate Offer”) any and all Notes properly tendered at a cash price equal to or higher than the Change of Control Purchase Price and has purchased all Notes properly tendered and not withdrawn in accordance with the terms of such Alternate Offer.
(7) None of the provisions relating to a repurchase of Securities pursuant to upon a Change of Control Offer. To the extent that any securities laws or regulations conflict with the provisions of this Section 1009, the Issuer shall comply with the applicable securities laws and regulations and Triggering Event shall be deemed not to have breached its obligations under this Indenture waivable by virtue thereofthe Board of Directors of the Company.
Appears in 12 contracts
Samples: Supplemental Indenture (Horton D R Inc /De/), Supplemental Indenture (Horton D R Inc /De/), Supplemental Indenture (Horton D R Inc /De/)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such seriesa) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has previously exercised its right to redeem the Securities in accordance with their respective terms, each Holder of Securities of such series will shall have the right to require the Issuer Company to purchase all or a portion of repurchase such Holder’s Securities pursuant to the offer described below (the “Change of Control Offer”), Notes at a purchase price in cash equal to 101% of the principal amount thereof on the date of purchase plus accrued and unpaid interest, if any, to the date of purchase, purchase (subject to the rights right of Holders of the Securities record on the relevant Record Date to receive interest due on the relevant Interest Payment Date. ).
(b) Within 30 days following the date upon which the any Change of Control Triggering Event shall have occurred, or the Company shall send a notice to each Holder with a copy to the Trustee (the “Change of Control Offer”) or, at the IssuerCompany’s option, prior to any Change of Control, Control but after the public announcement of the pending Change of Control, the Issuer shall send, by first class mail, a notice to each Holder of Securities of such series, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute the Change of Control and shall statestating:
(i) that the a Change of Control Offer is being made pursuant has occurred and that such Holder has the right to this Section 1009 require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101% of this Indenturethe 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 relevant Record Date to receive interest on the relevant Interest Payment Date);
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on the date specified in such notice, (which date shall be no earlier than 30 days and no nor later than 60 days from the date such notice is mailed, other than as may be required by law (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;
(iv) that any Security not tendered or accepted for payment shall continue to accrue interest;
(v) that Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior to the Change of Control Payment Date;
(viii) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ixiii) the CUSIP numberinstructions, if anyas determined by the Company, printed on consistent with the Securities being repurchased and covenant described hereunder, that no representation is made as a Holder must follow in order to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. have its Notes purchased.
(c) The Issuer Company shall not be required to make a Change of Control Offer following a Change of Control if a third party makes such an offer the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements for such an offer herein applicable to a Change of Control Offer made by the Issuer Company and such the third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offer. such Change of Control Offer.
(d) A Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement has been entered into with respect to such Change of Control at the time of making of the Change of Control Offer.
(e) The Issuer Company shall comply comply, to the extent applicable, with the requirements of Rule 14e-1 under Section 14(e) of the Exchange Act and any other securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to Notes as a result of a Change of Control OfferControl. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Offer provisions of contained in this Section 1009Article 4, the Issuer Company shall comply with the applicable securities laws and regulations and shall not be deemed not to have breached its obligations under the Change of Control Offer provisions contained in this Indenture Article 4 by virtue thereofof its compliance with such securities laws or regulations.
Appears in 12 contracts
Samples: Supplemental Indenture (Tyson Foods, Inc.), Supplemental Indenture (Tyson Foods, Inc.), Supplemental Indenture (Tyson Foods, Inc.)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such seriesa) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has previously exercised its right to redeem the Securities in accordance with their respective terms, each Holder of Securities of such series will shall have the right to require the Issuer Company to purchase all or a portion of repurchase such Holder’s Securities pursuant to the offer described below (the “Change of Control Offer”), Notes at a purchase price in cash equal to 101% of the principal amount thereof on the date of purchase plus accrued and unpaid interest, if any, to the date of purchase, purchase (subject to the rights right of Holders of the Securities record on the relevant Record Date to receive interest due on the relevant Interest Payment Date. ).
(b) Within 30 days following the date upon which the any Change of Control Triggering Event shall have occurred, the Company shall mail a notice by first-class mail (or otherwise in accordance with applicable Depositary procedures) to each Holder with a copy to the Trustee (the “Change of Control Offer”) or, at the IssuerCompany’s option, prior to any Change of Control, Control but after the public announcement of the pending Change of Control, the Issuer shall send, by first class mail, a notice to each Holder of Securities of such series, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute the Change of Control and shall statestating:
(i) that the a Change of Control Offer is being made pursuant has occurred and that such Holder has the right to this Section 1009 require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101% of this Indenturethe 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 relevant Record Date to receive interest on the relevant Interest Payment Date);
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on the date specified in such notice, (which date shall be no earlier than 30 days and no nor later than 60 days from the date such notice is mailed, other than as may be required by law (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;
(iv) that any Security not tendered or accepted for payment shall continue to accrue interest;
(v) that Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior to the Change of Control Payment Date;
(viii) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ixiii) the CUSIP numberinstructions, if anyas determined by the Company, printed on consistent with the Securities being repurchased and covenant described hereunder, that no representation is made as a Holder must follow in order to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. have its Notes purchased.
(c) The Issuer Company shall not be required to make a Change of Control Offer following a Change of Control if a third party makes such an offer the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements for such an offer herein applicable to a Change of Control Offer made by the Issuer Company and such the third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offer. such Change of Control Offer.
(d) A Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement has been entered into with respect to such Change of Control at the time of making of the Change of Control Offer.
(e) The Issuer Company shall comply comply, to the extent applicable, with the requirements of Rule 14e-1 under Section 14(e) of the Exchange Act and any other securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to Notes as a result of a Change of Control OfferControl. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Offer provisions of contained in this Section 1009Article 4, the Issuer Company shall comply with the applicable securities laws and regulations and shall not be deemed not to have breached its obligations under the Change of Control Offer provisions contained in this Indenture Article 4 by virtue thereofof its compliance with such securities laws or regulations.
Appears in 4 contracts
Samples: Supplemental Indenture (Tyson Foods Inc), Supplemental Indenture (Tyson Foods Inc), Supplemental Indenture (Tyson Foods Inc)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has previously exercised its right to redeem the Securities in accordance with their respective terms, each Holder of Securities of such series will have the right to require the Issuer to purchase all or a portion of such Holder’s Securities pursuant to the offer described below (the “Change of Control Offer”), at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase, subject to the rights of Holders of the Securities on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following the date upon which the Change of Control Triggering Event occurred, or at the Issuer’s option, prior to any Change of Control, but after the public announcement of the pending Change of Control, the Issuer shall send, by first class mail, a notice to each Holder of Securities of such series, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute the Change of Control and shall state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on the date specified in such notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, other than as may be required by law (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;
(iv) that any Security not tendered or accepted for payment shall continue to accrue interest;
(v) that Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior to the Change of Control Payment Date;
(viii) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ix) the CUSIP number, if any, printed on the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall not be required to make a Change of Control Offer if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer and such third party purchases all corresponding Securities of such series properly tendered and not withdrawn under its offer. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that any securities laws or regulations conflict with the provisions of this Section 1009, the Issuer shall comply with the applicable securities laws and regulations and shall be deemed not to have breached its obligations under this Indenture by virtue thereof.
Appears in 4 contracts
Samples: Indenture (Amcor PLC), Indenture (Amcor PLC), Indenture (Amcor PLC)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has previously exercised its right to redeem the Securities in accordance with their respective termsall outstanding Notes of a series pursuant to Section 3.07, each Holder of Securities Notes of such series will have the right to require the Issuer to purchase all or a portion (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Securities Notes pursuant to the offer described below (the “Change of Control Offer”), at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to to, but excluding, the date of purchasepurchase (the “Change of Control Payment”), subject to the rights of Holders of the Securities on the relevant Record Date record date to receive interest due on the relevant Interest Payment Date. Within 30 days following the date upon which the Change of Control Triggering Event occurred, or or, at the Issuer’s option, prior to and conditioned on the occurrence of, any Change of Control, but after the public announcement of the pending transaction that constitutes or may constitute the Change of Control, the Issuer shall send, by first class mail, will deliver a notice to each Holder of Securities of such seriesHolder, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute the Change of Control and shall will state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, among other things, the purchase price and, that on the date specified in such noticedate, which date shall must be no earlier than 30 days and no nor later than 60 days from the date such notice is mailedsent and, if the notice is sent prior to the Change of Control, no earlier than the date of the occurrence of the Change of Control, other than as may be required by law (the “Change of Control Payment Date”). The notice will, the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed sent prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated Triggering Event occurring on or prior to the Change of Control Payment Date;
(iv) that any Security not tendered or accepted for payment shall continue to accrue interest;
(v) that Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior to the Change of Control Payment Date;
(viii) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ix) the CUSIP number, if any, printed on the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall not be required to make a Change of Control Offer if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer and such third party purchases all corresponding Securities of such series properly tendered and not withdrawn under its offer. The Issuer shall must comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase purchase of Securities the Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 10094.09, the Issuer shall will comply with the applicable those securities laws and regulations and shall will not be deemed not to have breached its obligations under this Indenture Section 4.09 by virtue of such conflicts. Holders of Definitive Notes electing to have a note purchased pursuant to a Change of Control Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified in the notice. Holders of Global Notes must transfer their Notes to the Paying Agent by book-entry transfer pursuant to the Applicable Procedures of the Paying Agent and the Depositary (in the case of Global Notes), in each case prior to the Close of Business on the third Business Day prior to the Change of Control Payment Date. On the Change of Control Payment Date, the Issuer shall, to the extent lawful:
(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased. The Paying Agent will promptly pay to each Holder of Notes of each applicable series properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate (or cause to be transferred by book-entry) a new Note of such series equal in principal amount to any unpurchased portion of any Notes of such series surrendered; provided that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Notwithstanding anything to the contrary in this Section 4.09, the Issuer will not be required to make a Change of Control Offer if a third party makes such an offer in the manner and at the times required and otherwise in compliance with the requirements applicable to such an offer had it been made by the Issuer, and such third party purchases all Notes properly tendered and not withdrawn under its offer. In addition, the Issuer may not repurchase any Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default hereunder, other than a Default in the payment of the Change of Control Payment upon a Change of Control Triggering Event.
Appears in 4 contracts
Samples: Indenture, Indenture (Broadcom Inc.), Indenture (Broadcom Inc.)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series (1) In the event that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event there shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such series) in accordance with this Section 1009. Upon the occurrence of occur a Change of Control Triggering Event, unless except as otherwise provided in Section 3.03(6) hereof, the Issuer has previously exercised its right Company shall make an offer to redeem the Securities in accordance with their respective terms, each Holder of Securities of such series will have the right to require the Issuer to purchase all or a portion of such Holder’s Securities pursuant to the offer described below Notes (the “Change of Control Offer”), ) to purchase all or any part of such Holder’s Notes at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, interest to the date of purchase, subject to purchase (the rights “Change of Holders of Control Purchase Price”) in accordance with the Securities on procedures set forth in this Section 3.03.
(2) On or before the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following the date upon which the thirtieth day after any Change of Control Triggering Event occurredEvent, or or, at the IssuerCompany’s option, prior to any Change of Control, but after the public announcement of the pending Change of Control, the Issuer Company shall sendbe obligated to make the Change of Control Offer by mailing, by first class mailor causing to be mailed, a notice to each Holder all Holders of Securities of such seriesNotes, with a copy to the Series Trustee, which a notice shall govern regarding the terms Change of Control Triggering Event and the Change of Control Offer. Such The notice shall describe state the transaction or transactions that constitute payment date for the Change of Control and shall state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture;
(ii) that the Issuer is required to offer to purchase all repurchase of the outstanding principal amount of Securities, the purchase price and, that on the date specified in such noticeNotes, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed. The notice may, other than as may be required by law (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall also state that the offer to purchase is conditioned on a Change of Control Offer is conditioned on the or Change of Control being consummated Triggering Event occurring on or prior to the payment date specified in the notice.
(3) On the payment date of the Change of Control Payment Date;Purchase Price as specified in the notice, the Company shall, to the extent lawful:
(ivA) that any Security not tendered or accepted accept for payment shall continue to accrue interest;
(v) that Securities accepted for payment all Notes or portions of Notes properly tendered and not withdrawn pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment DateOffer;
(viB) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, deposit with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior Paying Agent an amount equal to the Change of Control Payment Date;Purchase Price in respect of all Notes or portions of Notes properly tendered and not withdrawn pursuant to the Change of Control Offer; and
(viiiC) that Holders whose Securities are deliver or cause to be delivered to the Series Trustee the Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased only in part by the Company.
(4) The Paying Agent shall promptly mail to each Holder of Notes properly tendered pursuant to the Change of Control Offer, the Change of Control Purchase Price for such Notes, and the Series Trustee shall promptly authenticate and mail, or cause to be issued transferred by book entry, to each such Holder a new Securities Note equal in principal amount to the any unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ix) the CUSIP numberNotes surrendered, if any; provided that the new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as reasonably practicable after the payment date of the Change of Control Purchase Price.
(5) The Company will comply with applicable law, printed on including Section 14(e) of the Securities being repurchased Exchange Act and that no representation is made as Rule 14e-1 thereunder, and any other securities laws and regulations thereunder to the correctness or accuracy extent those laws and regulations are applicable in connection with the purchase of the CUSIP numberNotes as a result of a Change of Control or Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with this Section 3.03, if any, listed in the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 3.03 by virtue of such notice or printed on the Securities. conflict.
(6) The Issuer shall Company will not be required to make a Change of Control Offer after a Change of Control Triggering Event if (1) a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer Company and such third party purchases all corresponding Securities of such series Notes properly tendered and not withdrawn under its offer. The Issuer shall comply , (2) the Company has given notice to redeem all Notes in accordance with paragraph 4 of the requirements Notes and Article Three of Rule 14e-1 under the Exchange Act Base Indenture, unless and any other securities laws and regulations thereunder to until there is a default in payment of the extent such laws and regulations are applicable redemption price or (3) in connection with or in contemplation of any Change of Control for which a definitive agreement is in place, the Company or a third party has made an offer to purchase (an “Alternate Offer”) any and all Notes properly tendered at a cash price equal to or higher than the Change of Control Purchase Price and has purchased all Notes properly tendered and not withdrawn in accordance with the terms of such Alternate Offer.
(7) None of the provisions relating to a repurchase of Securities pursuant to upon a Change of Control Offer. To the extent that any securities laws or regulations conflict with the provisions of this Section 1009, the Issuer shall comply with the applicable securities laws and regulations and Triggering Event shall be deemed not to have breached its obligations under this Indenture waivable by virtue thereofthe Board of Directors of the Company.
Appears in 2 contracts
Samples: Supplemental Indenture (Horton D R Inc /De/), Supplemental Indenture (Horton D R Inc /De/)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer Company has previously exercised its right given a notice of redemption with respect to redeem all of the Securities Notes in accordance with their respective termsSection 3.7, each Holder of Securities of such series the Company will have the right make an Offer to require the Issuer to purchase all or a portion of such Holder’s Securities pursuant to the offer described below Purchase (the “Change of Control Offer”), ) all of the outstanding Notes at a purchase price Purchase Price in cash equal to 101% of the principal amount thereof tendered, together with accrued and unpaid interest, if any, to but not including the Purchase Date (the “Change of Control Payment”). For purposes of the foregoing, an Offer to Purchase shall be deemed to have been made if (i) within 60 days following the date of the Change of Control Triggering Event, the Company commences an Offer to Purchase all outstanding Notes at the Purchase Price (provided that the running of such 60-day period shall be suspended, for up to a maximum of 30 days, during any period when the commencement of such Offer to Purchase is delayed or suspended by reason of any court’s or governmental authority’s review of or ruling on any materials being employed by the Company to effect such Offer to Purchase, so long as the Company has used and continues to use its commercially reasonable efforts to make and conclude such Offer to Purchase promptly) and (ii) all Notes properly tendered pursuant to the Offer to Purchase are purchased on the terms of such Offer to Purchase. If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in an Offer to Purchase the Notes upon a Change of Control Triggering Event and the Company, or any third party making an Offer to Purchase the Notes upon a Change of Control Triggering Event in lieu of the Company purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company shall have the right, upon not less than 30 nor more than 60 days’ prior written notice, given not more than 30 days following the Purchase Date, to redeem all Notes that remain outstanding following such purchase at a Redemption Price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to to, but not including, the date of purchase, subject to the rights of Holders of the Securities on the relevant Record Date to receive interest due on the relevant Interest Payment Dateredemption. Within 30 days following the date upon which the The Change of Control Triggering Event occurred, provisions described above will be applicable whether or at the Issuer’s option, prior to not any Change of Control, but after the public announcement of the pending Change of Control, the Issuer shall send, by first class mail, a notice to each Holder of Securities of such series, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute the Change of Control and shall state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 other provisions of this Indenture;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on the date specified in such notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, other than Indenture are applicable. Except as may be required by law (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;
(iv) that any Security not tendered or accepted for payment shall continue to accrue interest;
(v) that Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi) that Holders electing to have a Security purchased pursuant described above with respect to a Change of Control Offer may elect Triggering Event, this Indenture does not contain provisions that permit the Holders to have all, require that the Company repurchase or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, with redeem the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified Notes in the notice prior to the Change event of Control Payment Date;
(viii) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (a takeover, recapitalization or transferred by book-entry transfer); and
(ix) the CUSIP number, if any, printed on the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securitiessimilar transaction. The Issuer Company shall not be required to make a Change of Control Offer upon a Change of Control Triggering Event if (i) a third party makes such an offer the Change of Control Offer contemporaneously with or upon a Change of Control Triggering Event, in the manner, at the times and otherwise in compliance with the requirements for such an offer set forth herein applicable to a Change of Control Offer made by the Issuer Company and such third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offer. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control OfferOffer or (ii) a notice of redemption of all outstanding Notes has been given in accordance with this Indenture. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Triggering Event provisions of this Section 1009Indenture, the Issuer shall Company will comply with the applicable securities laws and regulations and shall will not be deemed not to have breached its obligations under the Change of Control Triggering Event provisions of this Indenture by virtue thereofof such compliance. In addition, an Offer to Purchase may be made in advance of a Change of Control Triggering Event, conditional upon such Change of Control Triggering Event, if a definitive agreement is in place for the Change of Control at the time of launching the Offer to Purchase. Notwithstanding the foregoing, a transaction or series of related transactions will not be deemed to involve a Change of Control if (i) as a result of such transaction or series of related transactions the Company becomes a direct or indirect wholly-owned subsidiary of a holding company or a holding company becomes the successor to the Company in accordance with Section 5.1 and (ii) the direct or indirect holders of the Voting Interests of such holding company immediately following that transaction or series of related transactions are the same or substantially the same as the holders of the Company’s Voting Interests immediately prior to that transaction or series of related transactions.
Appears in 2 contracts
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such seriesa) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has previously exercised its right to redeem the Securities in accordance with their respective terms, each Holder of Securities of such series will have the right to require the Issuer to purchase all or shall make an offer (a portion of such Holder’s Securities pursuant to the offer described below (the “Change of Control Offer”), ) to each Holder to repurchase all or any part (equal to US$200,000 or an integral multiple of US$1,000 in excess of US$200,000) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interestinterest on the Notes purchased, if any, to (but excluding) the date of purchase, purchase (subject to the rights right of Holders holders of the Securities record on the relevant Record Date record date to receive interest due on the relevant Interest Payment Dateinterest payment date), except to the extent the Issuer has previously or concurrently elected to redeem the Notes in full as described in Section 3.07 or Section 3.10 (the “Change of Control Payment”). Within 30 ten days following the date upon which the any Change of Control Triggering Event occurred, or at the Issuer’s option, prior to any Change of Control, but after the public announcement of the pending Change of ControlEvent, the Issuer shall send, by first class mail, mail a notice to each Holder of Securities of such series, (with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe ) describing the transaction or transactions that constitute the Change of Control Triggering Event and shall statestating:
(i1) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture4.08 and that all Notes tendered shall be accepted for payment;
(ii2) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on and the date specified in such noticepurchase date, which date shall be no earlier than 30 10 days and no later than 60 days from the date such notice is mailed, other than as may be required by law mailed (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;
(iv3) that any Security Note not tendered or accepted for payment shall continue to accrue interest;
(v4) that Securities that, unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi5) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities Notes purchased pursuant to a Change of Control Offer shall be required to surrender their Securitiesthe Notes, with the form entitled “Option of Holder to Elect Purchase” on attached to the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly Notes completed, or transfer the relevant Security by book-entry transfer, to the paying agent Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(viii6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Xxxxxx is withdrawing his election to have the Notes purchased; and
(7) that Holders whose Securities Notes are being purchased only in part shall be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities surrendered Notes surrendered, which unpurchased portion must be equal to US$200,000 or in integral multiples of US$1,000 in excess of US$200,000. To the extent that the provisions of any applicable securities laws or regulations conflict with the provisions of this Section 4.08 and Section 4.10, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.08 by virtue of such compliance.
(b) On the Change of Control Payment Date, the Issuer shall, to the extent lawful:
(1) accept for payment all Notes or transferred by book-entry transfer)portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and
(ix3) deliver or cause to be delivered to the CUSIP numberTrustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuer. The Paying Agent shall promptly deliver to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any, printed ; provided that each new Note shall be in a principal amount of US$200,000 or in integral multiples of US$1,000 in excess of US$200,000. The Issuer shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Securities being repurchased and that no representation is made as Change of Control Payment Date.
(c) Notwithstanding anything to the correctness or accuracy of contrary in this Section 4.08, the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall not be required to make a Change of Control Offer upon a Change of Control Triggering Event if (1) a third party makes such an offer the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer set forth in this Section 4.08 and such third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offer. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that any securities laws Offer or regulations conflict with the provisions (2) a notice of this redemption has been given pursuant to Section 10093.07, the Issuer shall comply with 3.09 or 3.10 hereof, unless and until there is a default in payment of the applicable securities laws and regulations and shall be deemed not to have breached its obligations under this Indenture by virtue thereofredemption price.
Appears in 2 contracts
Samples: Indenture (Wynn Resorts LTD), Indenture (Wynn Resorts LTD)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of (a) Unless the Company has previously or concurrently sent a redemption notice with respect to all existing Notes as described in Section 3.07 and all conditions precedent applicable to such redemption notice have been satisfied, within 30 days following any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by or, at the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for option of the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Company, prior to any Change of Control Triggering Event, unless but after public announcement of the Issuer has previously exercised its right to redeem transaction or transactions that constitute or may constitute the Securities in accordance with their respective terms, each Holder of Securities of such series will have the right to require the Issuer to purchase all or a portion of such Holder’s Securities pursuant to the offer described below (the “Change of Control Offer”)Triggering Event, the Company shall be required to commence an Offer to Purchase for all Notes then outstanding at a purchase price in cash equal to 101% of the principal amount thereof of the Notes, plus accrued and unpaid interest, if any, to the date of purchase, subject to the rights of Holders of the Securities on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following The Offer to Purchase will, if sent prior to the date upon on which the Change of Control Triggering Event occurredoccurs, or at the Issuer’s option, prior to any Change of Control, but after the public announcement of the pending Change of Control, the Issuer shall send, by first class mail, a notice to each Holder of Securities of such series, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute or may constitute the Change of Control Triggering Event, and shall state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on the date specified in such notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, other than as may be required by law (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer to Purchase is conditioned on the Change of Control being consummated Triggering Event occurring on or prior to the Change of Control applicable Payment Date;.
(ivb) Subject to Section 4.13(c), the provisions described above that any Security not tendered or accepted for payment shall continue require the Company to accrue interest;
(v) that Securities accepted for payment pursuant make an Offer to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi) that Holders electing to have a Security purchased pursuant to Purchase following a Change of Control Offer may elect to have all, or Triggering Event will be applicable regardless of whether any portion other provisions of such Security, purchased;this Indenture are applicable.
(viic) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior to the Change of Control Payment Date;
(viii) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ix) the CUSIP number, if any, printed on the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall Company will not be required to make an Offer to Purchase upon a Change of Control Offer Triggering Event if a third party makes such an offer the Offer to Purchase in the manner, at the times and otherwise in compliance with the requirements for such set forth in this Indenture applicable to an offer Offer to Purchase made by the Issuer Company and such third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offer. such Offer to Purchase.
(d) If Holders of not less than 90.0% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer to Purchase and the Company, or any third party making an Offer to Purchase in lieu of the Company as described above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer to Purchase described above, to redeem all Notes that remain outstanding following such purchase at a redemption price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to, but not including, such purchase date.
(e) The Issuer shall comply Company will comply, to the extent applicable, with the requirements of Rule 14e-1 under Section 14(e) of the Exchange Act and any other securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to Notes as a result of a Change of Control OfferTriggering Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 10094.13, the Issuer shall Company will comply with the applicable securities laws and regulations and shall will not be deemed not to have breached its obligations under this Indenture Section 4.13 by virtue thereofof its compliance with such securities laws or regulations.
(f) If the terms of any Credit Facility prohibit the Company from making an Offer to Purchase or from purchasing the Notes pursuant thereto, prior to the sending of the notice to Holders, but in any event within 30 days following any Change of Control Triggering Event, the Company covenants to:
(1) repay in full all Indebtedness outstanding under such Credit Facilities or offer to repay in full all such Indebtedness and repay the Indebtedness of each lender who has accepted such offer; or
(2) obtain the requisite consent under such Credit Facilities to permit the purchase of the Notes as described above.
(g) The Company must first comply with clause (f) of this Section 4.13 before it will be required to purchase Notes in the event of a Change of Control Triggering Event; provided, however, that the Company’s failure to comply with clause (f) of this Section 4.13 or to make a Change of Control Offer to Purchase because of any such failure shall constitute a Default described in clause (4) in Section 6.01 (and not under clause (3) in Section 6.01 hereof); provided further, if the Company has instituted any liability management procedures or is otherwise engaged in obtaining the requisite consents under such Credit Facilities to permit the purchase of the Notes (such engagement to be determined by the Company in its sole discretion), the Company shall have an additional 30 days following the initial 30-day period after the occurrence of a Change of Control Triggering Event to secure such consents and no Default shall have occurred if such consents are obtained within such 30-day period.
Appears in 2 contracts
Samples: Indenture (Park Hotels & Resorts Inc.), Indenture (Park Hotels & Resorts Inc.)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering EventEvent with respect to a series of Securities, unless the Issuer Company has previously exercised its right to redeem the Securities of such series by giving irrevocable notice on or prior to the 30th day after the Change of Control Triggering Event in accordance with their respective termsthis Indenture, each Holder of the Securities of such series will have the right to require the Issuer Company to purchase all or a portion of such Holder’s Securities of such series pursuant to the offer described below (the “Change of Control Offer”), at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, thereon to, but excluding, the Change of Control Payment Date (as defined below) (the “Change of Control Payment”). If the Change of Control Payment Date is (a) on a day that is not a Business Day, the related payment of the Change of Control Payment will be made on the next Business Day as if it were made on the date such payment was due, and no interest will accrue on the amounts so payable for the period from and after such date to the date of purchase, subject to the rights of Holders of the Securities next Business Day and/or (b) on the relevant or after a Record Date to receive interest due and on or before the relevant related Interest Payment Date, the accrued and unpaid interest, if any, will be paid to the person in whose name the Security is registered at the close of business on such Record Date, and no additional interest will be payable to Holders whose Securities are subject to purchase by the Company. Within 30 days following the date upon which the Change of Control Triggering Event occurredoccurs or, or at the IssuerCompany’s option, prior to any Change of Control, Control but after the public announcement of the pending Change of Control, the Issuer shall sendCompany will be required to mail or otherwise deliver in accordance with the applicable procedures of DTC, by first class mail, Euroclear or Clearstream a notice to each Holder of Securities of such the applicable series, with a copy to the Trustee, which notice shall will govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute the Change of Control and shall state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, will state the purchase price and, that on the date specified in such noticedate, which date shall must be no earlier than 30 15 days and no nor later than 60 days from the date such notice is mailedmailed or otherwise delivered in accordance with the applicable procedures of DTC, Euroclear or Clearstream (or, in the case of a notice mailed or otherwise delivered in accordance with the applicable procedures of DTC, Euroclear or Clearstream prior to the date of consummation of a Change of Control, no earlier than 15 days nor later than 60 days from the date of the Change of Control Triggering Event), other than as may be required by law (the “Change of Control Payment Date”). The notice, the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed or otherwise delivered in accordance with the applicable procedures of DTC, Euroclear or Clearstream prior to the date of consummation of the Change of Control, shall will state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;. On the Change of Control Payment Date, the Company will, to the extent lawful:
(iv1) that any Security not tendered Accept or accepted cause a third party to accept for payment shall continue to accrue interest;
(v) that all the Securities accepted for payment of the applicable series properly tendered pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment DateOffer;
(vi2) that Holders electing Deposit or cause a third party to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, deposit with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior applicable Paying Agent an amount equal to the Change of Control Payment Date;
(viii) that Holders whose in respect of all the Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer)applicable series properly tendered; and
(ix3) Deliver or cause to be delivered to the CUSIP number, if any, printed on Trustee the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on applicable series properly accepted together with an Officer’s Certificate stating the Securitiesaggregate principal amount of the Securities of each series being purchased. The Issuer shall Company will not be required to make a Change of Control Offer with respect to the Securities of the applicable series if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer Company and such third party purchases all corresponding the Securities of such the applicable series properly tendered and not withdrawn under its offer. In addition, the Company will not purchase any Securities of the applicable series if there has occurred and is continuing on the Change of Control Payment Date an Event of Default, other than an Event of Default in the payment of the Change of Control Payment on the Change of Control Payment Date. In connection with any Change of Control Offer for any series of Securities, if Holders of not less than 90% in aggregate principal amount of the outstanding Securities of such series validly tender and do not withdraw such Securities in the Change of Control Offer and the Company, or any third party making the Change of Control Offer in lieu of the Company as described above, purchases all of those Securities validly tendered and not withdrawn by the holders, the Company or such third party will have the right, upon not less than 15 but not more than 60 days’ notice mailed or otherwise delivered in accordance with the applicable procedures of DTC, Euroclear or Clearstream by the Company to each holder of such Securities (provided, that the notice is given not more than 30 days following the purchase date in respect of such Change of Control Offer), to redeem all the Securities of such series that remain outstanding following such purchase at a price in cash equal to 101% of the outstanding principal amount of the Securities plus accrued and unpaid interest, if any, to, but excluding, the applicable purchase date (it being agreed that if the purchase date is (a) on a day that is not a Business Day, the related payment will be made on the next Business Day as if it were made on the date such payment was due, and no interest will accrue on the amounts so payable for the period from and after such date to the next Business Day and/or (b) on or after a Record Date and on or before the related Interest Payment Date, the accrued and unpaid interest, if any, will be paid to the person in whose name the Security is registered at the close of business on such Record Date, and no additional interest will be payable to holders whose Securities are subject to purchase by the Company). The Issuer shall Company must comply in all material respects with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended, and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase purchase of the Securities pursuant to of the applicable series as a result of a Change of Control OfferTriggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions of this Section 1009the Securities of the applicable series, the Issuer shall Company will be required to comply with the applicable those securities laws and regulations and shall will not be deemed not to have breached its obligations under this Indenture with respect to the Securities of such series by virtue thereofof any such conflict. The definition of Change of Control includes a phrase relating to the direct or indirect sale, lease, transfer, conveyance or other disposition of “all or substantially all” of the assets of the Guarantor and its subsidiaries taken as a whole. Although there is a limited body of case law interpreting the phrase “substantially all,” there is no precise, established definition of the phrase under applicable law. Accordingly, the applicability of the requirement that the Company offer to purchase the Securities as a result of a sale, lease, transfer, conveyance or other disposition of less than all of the assets of the Guarantor and its subsidiaries taken as a whole to another “person” (as that term is used in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) may be uncertain.
Appears in 2 contracts
Samples: Indenture (Otis Worldwide Corp), Indenture (Highland Holdings S.a r.l.)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that (a) Unless the Issuer make an offer has previously or concurrently sent a redemption notice with respect to purchase upon a all existing Notes as described in Section 3.07 and all conditions precedent applicable to such redemption notice have been satisfied, within 30 days following any Change of Control Triggering Event shall be purchased by or, at the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for option of the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Issuer, prior to any Change of Control Triggering Event, unless but after public announcement of the Issuer has previously exercised its right to redeem transaction or transactions that constitute or may constitute the Securities in accordance with their respective terms, each Holder of Securities of such series will have the right to require the Issuer to purchase all or a portion of such Holder’s Securities pursuant to the offer described below (the “Change of Control Offer”)Triggering Event, the Issuer shall be required to commence an Offer to Purchase for all Notes then outstanding at a purchase price in cash equal to 101% of the principal amount thereof of the Notes, plus accrued and unpaid interest, if any, to, but not including the Payment Date. The Offer to Purchase will, if sent prior to the date of purchase, subject to the rights of Holders of the Securities on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following the date upon which the Change of Control Triggering Event occurredoccurs, or at the Issuer’s option, prior to any Change of Control, but after the public announcement of the pending Change of Control, the Issuer shall send, by first class mail, a notice to each Holder of Securities of such series, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute or may constitute the Change of Control Triggering Event, and shall state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on the date specified in such notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, other than as may be required by law (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer to Purchase is conditioned on the Change of Control being consummated Triggering Event occurring on or prior to the Change of Control applicable Payment Date;.
(ivb) Subject to Section 4.13(c), the provisions described above that any Security not tendered or accepted for payment shall continue require the Issuer to accrue interest;
(v) that Securities accepted for payment pursuant make an Offer to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi) that Holders electing to have a Security purchased pursuant to Purchase following a Change of Control Offer may elect to have all, or Triggering Event will be applicable regardless of whether any portion other provisions of such Security, purchased;this Indenture are applicable.
(viic) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior to the Change of Control Payment Date;
(viii) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ix) the CUSIP number, if any, printed on the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall will not be required to make an Offer to Purchase upon a Change of Control Offer Triggering Event if a third party makes such an offer the Offer to Purchase in the manner, at the times and otherwise in compliance with the requirements for such set forth in this Indenture applicable to an offer Offer to Purchase made by the Issuer and such third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offer. such Offer to Purchase.
(d) If Holders of not less than 90.0% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer to Purchase and the Issuer, or any third party making an Offer to Purchase in lieu of the Issuer as described above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer to Purchase described above, to redeem all Notes that remain outstanding following such purchase at a redemption price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to, but not including, such purchase date.
(e) The Issuer shall comply will comply, to the extent applicable, with the requirements of Rule 14e-1 under Section 14(e) of the Exchange Act and any other securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to Notes as a result of a Change of Control OfferTriggering Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 10094.13, the Issuer shall will comply with the applicable securities laws and regulations and shall will not be deemed not to have breached its obligations under this Indenture Section 4.13 by virtue thereofof its compliance with such securities laws or regulations.
(f) If the terms of any Credit Facility prohibit the Issuer from making an Offer to Purchase or from purchasing the Notes pursuant thereto, prior to the sending of the notice to Holders, but in any event within 30 days following any Change of Control Triggering Event, the Issuer covenants to:
(1) repay in full all Indebtedness outstanding under such Credit Facilities or offer to repay in full all such Indebtedness and repay the Indebtedness of each lender who has accepted such offer; or
(2) obtain the requisite consent under such Credit Facilities to permit the purchase of the Notes as described above.
(g) The Issuer must first comply with clause (f) of this Section 4.13 before it will be required to purchase Notes in the event of a Change of Control Triggering Event; provided, however, that the Issuer’s failure to comply with clause (f) of this Section 4.13 or to make a Change of Control Offer to Purchase because of any such failure shall constitute a Default described in clause (4) in Section 6.01 (and not under clause (3) in Section 6.01 hereof); provided further, if the Issuer has instituted any liability management procedures or is otherwise engaged in obtaining the requisite consents under such Credit Facilities to permit the purchase of the Notes (such engagement to be determined by the Issuer in its sole discretion), the Issuer shall have an additional 30 days following the initial 30-day period after the occurrence of a Change of Control Triggering Event to secure such consents and no Default shall have occurred if such consents are obtained within such 30-day period.
(h) In addition, if any such purchase (including any Offer to Purchase) is subject to satisfaction of one or more conditions precedent, such notice will describe each such condition, and if applicable, will state that, in the Issuer’s discretion, the Payment Date may be delayed until such time as any or all such conditions shall be satisfied, or such purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Payment Date, or by the Payment Date as so delayed.
(i) On the Payment Date, the Issuer will:
(1) accept for payment on a pro rata basis Notes or portions thereof tendered pursuant to an Offer to Purchase;
(2) deposit with the applicable paying agent money sufficient, as determined by the Issuer, to pay the purchase price of all Notes or portions thereof so accepted; and
(3) promptly thereafter deliver, or cause to be delivered, to the Trustee all Notes or portions thereof so accepted together with an officer’s certificate specifying the Notes or portions thereof accepted for payment by the Issuer.
(j) The paying agent will promptly deliver to the holders of Notes so accepted payment in an amount equal to the purchase price, and the Trustee will promptly authenticate and deliver to such holders a new Note equal in principal amount to any unpurchased portion of any Note surrendered; provided that each Note purchased and each new Note issued will be in a principal amount of $2,000 and any higher integral multiple of $1,000. The Issuer will publicly announce the results of an Offer to Purchase as soon as practicable after the Payment Date.
Appears in 2 contracts
Samples: Indenture (RLJ Lodging Trust), Indenture (RLJ Lodging Trust)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that (a) Unless the Issuer make an offer has previously or concurrently sent a redemption notice with respect to purchase upon a all existing Notes pursuant to Section 3.07 and all conditions precedent applicable to such redemption notice have been satisfied, within 30 days following any Change of Control Triggering Event shall be purchased by or, at the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for option of the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Issuer, prior to any Change of Control Triggering Event, unless but after public announcement of the Issuer has previously exercised its right to redeem transaction or transactions that constitute or may constitute the Securities in accordance with their respective terms, each Holder of Securities of such series will have the right to require the Issuer to purchase all or a portion of such Holder’s Securities pursuant to the offer described below (the “Change of Control Offer”)Triggering Event, the Issuer will commence an Offer to Purchase for all Notes then outstanding at a purchase price in cash equal to 101% of the principal amount thereof of the Notes, plus accrued and unpaid interest, if any, to, but not including, the Payment Date. The Offer to Purchase will, if sent prior to the date of purchase, subject to the rights of Holders of the Securities on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following the date upon which the Change of Control Triggering Event occurredoccurs, or at the Issuer’s option, prior to any Change of Control, but after the public announcement of the pending Change of Control, the Issuer shall send, by first class mail, a notice to each Holder of Securities of such series, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute or may constitute the Change of Control Triggering Event, and shall state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on the date specified in such notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, other than as may be required by law (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer to Purchase is conditioned on the Change of Control being consummated Triggering Event occurring on or prior to the Change of Control applicable Payment Date;.
(ivb) Subject to Section 4.13(c), the provisions described above that any Security not tendered or accepted for payment shall continue require the Issuer to accrue interest;
(v) that Securities accepted for payment pursuant make an Offer to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi) that Holders electing to have a Security purchased pursuant to Purchase following a Change of Control Offer may elect to have all, or Triggering Event will be applicable regardless of whether any portion other provisions of such Security, purchased;this Indenture are applicable.
(viic) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior to the Change of Control Payment Date;
(viii) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ix) the CUSIP number, if any, printed on the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall will not be required to make an Offer to Purchase upon a Change of Control Offer Triggering Event if a third party makes such an offer the Offer to Purchase in the manner, at the times and otherwise in compliance with the requirements for such set forth in this Indenture applicable to an offer Offer to Purchase made by the Issuer and such third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offer. such Offer to Purchase.
(d) [reserved].
(e) The Issuer shall comply will comply, to the extent applicable, with the requirements of Rule 14e-1 under Section 14(e) of the Exchange Act and any other securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to Notes as a result of a Change of Control OfferTriggering Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 10094.13, the Issuer shall will comply with the applicable securities laws and regulations and shall will not be deemed not to have breached its obligations under this Indenture Section 4.13 by virtue thereofof its compliance with such securities laws or regulations.
(f) If the terms of any Credit Facility prohibit the Issuer from making an Offer to Purchase or from purchasing the Notes pursuant thereto, prior to the sending of the notice to Holders, but in any event within 30 days following any Change of Control Triggering Event, the Issuer covenants to:
(1) repay in full all Indebtedness outstanding under such Credit Facilities or offer to repay in full all such Indebtedness and repay the Indebtedness of each lender who has accepted such offer; or
(2) obtain the requisite consent under such Credit Facilities to permit the purchase of the Notes as described above.
(g) The Issuer must first comply with clause (f) of this Section 4.13 before it will be required to purchase Notes in the event of a Change of Control Triggering Event; provided, however, that the Issuer’s failure to comply with clause (f) of this Section 4.13 or to make a Change of Control Offer to Purchase because of any such failure shall constitute a Default described in clause (4) in Section 6.01 (and not under clause (3) in Section 6.01 hereof); provided further, if the Issuer has instituted any liability management procedures or is otherwise engaged in obtaining the requisite consents under such Credit Facilities to permit the purchase of the Notes (such engagement to be determined by the Issuer in its sole discretion), the Issuer shall have an additional 30 days following the initial 30-day period after the occurrence of a Change of Control Triggering Event to secure such consents and no Default shall have occurred if such consents are obtained within such 30-day period.
(h) If any such Offer to Purchase is subject to satisfaction of one or more conditions precedent, such notice will describe each such condition, and if applicable, will state that, in the Issuer’s discretion, the Payment Date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption or purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Payment Date, or by the Payment Date as so delayed, in each case in accordance with Section 3.03 hereof.
(i) On the Payment Date, the Issuer will:
(1) accept for payment on a pro rata basis Notes or portions thereof tendered pursuant to an Offer to Purchase;
(2) deposit with the applicable paying agent money sufficient, as determined by the Issuer, to pay the purchase price of all Notes or portions thereof so accepted; and
(3) promptly thereafter deliver, or cause to be delivered, to the Trustee all Notes or portions thereof so accepted together with an Officer’s Certificate specifying the Notes or portions thereof accepted for payment by the Issuer. The Paying Agent will promptly deliver to the Holders so accepted payment in an amount equal to the purchase price, and the Trustee will promptly authenticate and deliver to such Holders a new Note equal in principal amount to any unpurchased portion of any Note surrendered; provided that each Note purchased and each new Note issued will be in a principal amount of $2,000 and any higher integral multiple of $1,000. The Issuer will publicly announce the results of an Offer to Purchase as soon as practicable after the Payment Date.
Appears in 2 contracts
Samples: Indenture (Xenia Hotels & Resorts, Inc.), Indenture (Xenia Hotels & Resorts, Inc.)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon (a) If a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Eventoccurs, unless the Issuer Company has previously exercised its right option to redeem the Securities in accordance with their respective termsNotes pursuant to Section 2.3(e) hereof, each Holder of Securities of such series will have the right Company shall be required to require the Issuer make an offer to purchase all or a portion of such Holder’s Securities the Notes pursuant to the offer described below in this Section 2.5 (the “Change of Control Offer”), ) at a purchase price in cash equal to 101% of the aggregate principal amount thereof of Notes repurchased plus accrued and unpaid interest, if any, to on the Notes repurchased to, but excluding, the date of purchaserepurchase (the “Change of Control Payment”), subject to the rights right of Holders of the Securities Notes of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following the date upon which the any Change of Control Triggering Event occurredor, or at the IssuerCompany’s option, prior to any Change of Control, but after the public announcement of the pending transaction that constitutes or may constitute the Change of Control, the Issuer Company shall send, by first class mail, a mail notice to each Holder Holders of Securities of such seriesthe Notes, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe describing the transaction that constitutes or transactions that may constitute the Change of Control Triggering Event and shall statewith the following information:
(i) that the a Change of Control Offer is being made pursuant to this Section 1009 2.5, and that all Notes properly tendered pursuant to such Change of this IndentureControl Offer will be accepted for payment by the Company;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on and the date specified in such noticepurchase date, which date shall will be no earlier than 30 days and no nor later than 60 days from the date such notice is mailed, other than except in the case of a conditional Change of Control Offer made in advance of a Change of Control as may be required by law described in clause (viii) below (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;
(iv) that any Security Note not properly tendered or accepted for payment shall will remain outstanding and continue to accrue interest;
(viv) that Securities unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrue interest after interest, on the Change of Control Payment Date;
(viv) that Holders electing to have a Security any Notes purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall will be required to surrender their Securitiessuch Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly Notes completed, or transfer the relevant Security by book-entry transfer, to the paying agent Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(viiivi) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(vii) that Holders whose Securities Notes are being purchased only in part shall will be issued new Securities Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Securities surrendered Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(viii) if such notice is delivered prior to the consummation of a Change of Control, stating that the Change of Control Offer is conditioned on the Change of Control Triggering Event occurring on or transferred by book-entry transfer)prior to the Change of Control Payment Date; and
(ix) the CUSIP numberother instructions, as determined by the Company, consistent with this Section 2.5, that a Holder must follow. The Trustee shall not be responsible for determining whether a Change of Control Triggering Event or any component thereof has occurred. The Paying Agent will promptly deliver to each Holder of the Notes tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after a Regular Record Date and on or before the related Interest Payment Date, printed any accrued and unpaid interest will be paid on the Securities being repurchased and that no representation is made as relevant Interest Payment Date to the correctness Person in whose name a Note is registered at the close of business on such Regular Record Date.
(b) On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(i) accept for payment all Notes or accuracy portions thereof properly tendered pursuant to the Change of Control Offer;
(ii) deposit with the CUSIP number, if any, listed Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(iii) deliver or cause to be delivered to the Trustee for cancellation the Notes so accepted together with an Officers’ Certificate stating that such notice Notes or printed on portions thereof have been tendered to and purchased by the Securities. Company.
(c) The Issuer Company shall not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if (i) a third party makes such an offer the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements for such an offer set forth in this Supplemental Indenture applicable to a Change of Control Offer made by the Issuer Company and such third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offersuch Change of Control Offer or (ii) a notice of redemption of all outstanding Notes has been given pursuant to the Indenture, unless and until there is a default in the payment of the Redemption Price on the applicable Redemption Date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied. In addition, the Company will not repurchase any Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture, other than a Default in the payment of the Change of Control Payment upon a Change of Control Triggering Event. Notwithstanding anything to the contrary in this Section 2.5, a Change of Control Offer may be made in advance of the consummation of a Change of Control, conditional upon the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
(d) The Issuer Company shall comply with the requirements of Rule 14e-1 under the Exchange Act Act, and any other securities laws and regulations thereunder applicable to the extent such laws and regulations are applicable in connection with the repurchase of Securities the Notes pursuant to a Change of Control Offerthis Section 2.5. To the extent that the provisions of any such securities laws or regulations conflict with the provisions of this Section 10092.5, the Issuer Company shall comply with the applicable those securities laws and regulations and shall not be deemed not to have breached its obligations under this Indenture Section 2.5 by virtue thereofof any such conflict.
(e) The provisions of this Section 2.5 may be waived (as provided in Section 10.8 of the Base Indenture) or modified with the written consent of the Holders of a majority in principal amount of the Notes then Outstanding if the Change of Control Triggering Event has not yet occurred.
Appears in 2 contracts
Samples: Third Supplemental Indenture (Yum Brands Inc), First Supplemental Indenture (Yum Brands Inc)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has previously exercised its right to redeem the Securities in accordance with their respective termsall outstanding Notes of a series pursuant to Section 3.07, each Holder of Securities Notes of such series will have the right to require the Issuer to purchase all or a portion (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Securities Notes pursuant to the offer described below (the “Change of Control Offer”), at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to to, but excluding, the date of purchasepurchase (the “Change of Control Payment”), subject to the rights of Holders of the Securities on the relevant Record Date record date to receive interest due on the relevant Interest Payment Date. Within 30 days following the date upon which the Change of Control Triggering Event occurred, or or, at the Issuer’s option, prior to and conditioned on the occurrence of, any Change of Control, but after the public announcement of the pending transaction that constitutes or may constitute the Change of Control, the Issuer shall send, by first class mail, will deliver a notice to each Holder of Securities of such seriesHolder, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute the Change of Control and shall will state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, among other things, the purchase price and, that on the date specified in such noticedate, which date shall must be no earlier than 30 days and no nor later than 60 days from the date such notice is mailedsent and, if the notice is sent prior to the Change of Control, no earlier than the date of the occurrence of the Change of Control, other than as may be required by law (the “Change of Control Payment Date”). The notice will, the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed sent prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated Triggering Event occurring on or prior to the Change of Control Payment Date;
(iv) that any Security not tendered or accepted for payment shall continue to accrue interest;
(v) that Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior to the Change of Control Payment Date;
(viii) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ix) the CUSIP number, if any, printed on the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall not be required to make a Change of Control Offer if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer and such third party purchases all corresponding Securities of such series properly tendered and not withdrawn under its offer. The Issuer shall must comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase purchase of Securities the Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 10094.09, the Issuer shall will comply with the applicable those securities laws and regulations and shall will not be deemed not to have breached its obligations under this Indenture Section 4.09 by virtue thereof.of such conflicts. Holders of Definitive Notes electing to have a note purchased pursuant to a Change of Control Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified in the notice. Holders of Global Notes must transfer their Notes to the Paying Agent by book-entry transfer pursuant to the Applicable Procedures of the Paying Agent and the Depositary (in the case of Global Notes), in each case prior to the Close of Business on the third Business Day prior to the Change of Control Payment Date. On the Change of Control Payment Date, the Issuer shall, to the extent lawful:
(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and
Appears in 1 contract
Samples: Indenture (Broadcom Inc.)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such seriesa) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has previously exercised its right to redeem the Securities in accordance with their respective terms, each Holder of Securities of such series will have the right to require the Issuer to purchase all or shall make an offer (a portion of such Holder’s Securities pursuant to the offer described below (the “Change of Control Offer”), ) to each Holder to repurchase all or any part (equal to US$200,000 or an integral multiple of US$1,000 in excess of US$200,000) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interestinterest on the Notes purchased, if any, to (but excluding) the date of purchase, purchase (subject to the rights right of Holders holders of the Securities record on the relevant Record Date record date to receive interest due on the relevant Interest Payment Dateinterest payment date), except to the extent the Issuer has previously or concurrently elected to redeem the Notes in full as described in Section 3.07 or Section 3.10 (the “Change of Control Payment”). Within 30 ten days following the date upon which the any Change of Control Triggering Event occurred, or at the Issuer’s option, prior to any Change of Control, but after the public announcement of the pending Change of ControlEvent, the Issuer shall send, by first class mail, mail a notice to each Holder of Securities of such series, (with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe ) describing the transaction or transactions that constitute the Change of Control Triggering Event and shall statestating:
(i1) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture4.08 and that all Notes tendered shall be accepted for payment;
(ii2) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on and the date specified in such noticepurchase date, which date shall be no earlier than 30 10 days and no later than 60 days from the date such notice is mailed, other than as may be required by law delivered (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;
(iv3) that any Security Note not tendered or accepted for payment shall continue to accrue interest;
(v4) that Securities that, unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi5) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities Notes purchased pursuant to a Change of Control Offer shall be required to surrender their Securitiesthe Notes, with the form entitled “Option of Holder to Elect Purchase” on attached to the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly Notes completed, or transfer the relevant Security by book-entry transfer, to the paying agent Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(viii6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Xxxxxx is withdrawing his election to have the Notes purchased; and
(7) that Holders whose Securities Notes are being purchased only in part shall be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities surrendered Notes surrendered, which unpurchased portion must be equal to US$200,000 or in integral multiples of US$1,000 in excess of US$200,000. To the extent that the provisions of any applicable securities laws or regulations conflict with the provisions of this Section 4.08 and Section 4.10, the Issuer shall not be deemed to have breached its obligations under this Section 4.08 by virtue of its compliance with such laws and regulations.
(b) On the Change of Control Payment Date, the Issuer shall, to the extent lawful:
(1) accept for payment all Notes or transferred by book-entry transfer)portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and
(ix3) deliver or cause to be delivered to the CUSIP numberTrustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuer. The Paying Agent shall promptly deliver to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and deliver (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any, printed ; provided that each new Note shall be in a principal amount of US$200,000 or in integral multiples of US$1,000 in excess of US$200,000. The Issuer shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Securities being repurchased and that no representation is made as Change of Control Payment Date.
(c) Notwithstanding anything to the correctness or accuracy of contrary in this Section 4.08, the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall not be required to make a Change of Control Offer upon a Change of Control Triggering Event if (1) a third party makes such an offer the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer set forth in this Section 4.08 and such third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offer. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that any securities laws Offer or regulations conflict with the provisions (2) a notice of this redemption has been given pursuant to Section 10093.07, the Issuer shall comply with 3.09 or 3.10 hereof, unless and until there is a default in payment of the applicable securities laws and regulations and shall be deemed not to have breached its obligations under this Indenture by virtue thereofredemption price.
Appears in 1 contract
Samples: Indenture (Wynn Resorts LTD)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such seriesa) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer Company has previously exercised its right or concurrently mailed a redemption notice with respect to redeem all the Securities outstanding Notes pursuant to Article 3 hereof (unless and until there is a default in accordance with their respective termspayment of the applicable redemption price or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied), each Holder of Securities of such series will have the right to require the Issuer Company shall make an offer to purchase all or a portion of such Holder’s Securities the Notes pursuant to the offer described below (the “Change of Control Offer”), ) at a purchase price in cash (the “Change of Control Payment”) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase, subject to the rights right of Holders of the Securities Notes of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date falling on or prior to the Change of Control Payment Date. Within 30 days following the date upon which the any Change of Control Triggering Event occurredor, or at the IssuerCompany’s option, prior to any Change of Control, but after the public announcement of the pending transaction that constitutes or may constitute the Change of Control, the Issuer Company shall send, by first class mail, a send notice to each Holder of Securities of such seriesChange of Control Offer, with a copy to the TrusteeTrustee and the Registrar, which notice shall govern by first-class mail, to each Holder of Notes to the terms address of such Holder appearing in the security register or otherwise in accordance with the procedures of the Change of Control Offer. Such notice shall describe Depository, with the transaction or transactions that constitute the Change of Control and shall statefollowing information:
(i) that the a Change of Control Offer is being made and that all Notes properly tendered pursuant to this Section 1009 such Change of this IndentureControl Offer shall be accepted for payment by the Company;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price andand the purchase date, that on which shall be no earlier than 30 days nor later than 60 days from the date specified in such noticenotice is given or, which date shall be if the notice is given prior to the Change of Control, no earlier than 30 days and no later than 60 days from after the date such notice is mailed, other than as may be required by law on which the Change of Control Triggering Event occurs (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;
(iv) that any Security Note not properly tendered or accepted for payment shall remain outstanding and continue to accrue interest;
(viv) that Securities unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after on the Change of Control Payment Date;
(viv) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities Notes purchased pursuant to a Change of Control Offer shall be required to surrender their Securitiessuch Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly Notes completed, or transfer the relevant Security by book-entry transfer, to the paying agent Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(viiivi) that Holders whose Securities are purchased only in part shall be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the third Business Day preceding the Change of Control Payment Date, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(vii) that Holders tendering less than all of their Notes shall be issued new Securities Notes and such new Notes shall be equal in principal amount to the unpurchased portion of the Securities surrendered (Notes surrendered. The unpurchased portion of the Notes must be equal to $2,000 or transferred by book-entry transfer)an integral multiple of $1,000 in excess thereof; and
(ixviii) the CUSIP numberother instructions, if any, printed on the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall not be required to make a Change of Control Offer if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made determined by the Issuer and such third party purchases all corresponding Securities of such series properly tendered and not withdrawn under its offer. Company, consistent with this Section 4.01, that a Holder must follow.
(b) The Issuer Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with the repurchase of Securities Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 1009the Indenture, the Issuer Company shall comply with the applicable securities laws and regulations and shall not be deemed not to have breached its obligations under this described in the Indenture by virtue thereof.
(c) On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(i) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officers’ Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Company.
(d) The Paying Agent shall promptly deliver to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new note shall be in a minimum principal amount of $2,000 or larger integral multiples of $1,000 in excess thereof.
(e) If the Change of Control Payment Date is on or after an interest Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, shall be paid on the Change of Control Payment Date to the Person in whose name a Note is registered at the close of business on such Record Date, and no additional interest shall be payable to Holders who tender pursuant to the Change of Control Offer.
(f) The Company shall not be required to make a Change of Control Offer following a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Supplemental Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Triggering Event, conditional upon such Change of Control Triggering Event, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
Appears in 1 contract
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon (a) If a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Eventoccurs, unless the Issuer has previously exercised its right option to redeem the Securities in accordance with their respective termsNotes pursuant to Section 5.07 hereof, each Holder of Securities of such series will have the right to require the Issuer shall make an offer to purchase all or a portion of such Holder’s Securities the Notes pursuant to the offer described below in this Section 3.04 (the “Change of Control Offer”), ) at a purchase price in cash equal to 101% of the aggregate principal amount thereof of Notes repurchased plus accrued and unpaid interest, if any, to on the Notes repurchased to, but excluding, the date of purchaserepurchase (the “Change of Control Payment”), subject to the rights right of Holders of the Securities Notes of record on the relevant Record Date record date to receive interest due on the relevant Interest Payment Dateinterest payment date. Within 30 days following the date upon which the any Change of Control Triggering Event occurredor, or at the Issuer’s option, prior to any Change of Control, but after the public announcement of the pending transaction that constitutes or may constitute the Change of Control, the Issuer shall send, by first class mail, a mail notice to each Holder Holders of Securities of such seriesthe Notes, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe describing the transaction that constitutes or transactions that may constitute the Change of Control Triggering Event and shall statewith the following information:
(i) that the a Change of Control Offer is being made pursuant to this Section 1009 3.04, and that all Notes properly tendered pursuant to such Change of this IndentureControl Offer will be accepted for payment by the Issuer;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on and the date specified in such noticepurchase date, which date shall will be no earlier than 30 days and no nor later than 60 days from the date such notice is mailed, other than except in the case of a conditional Change of Control Offer made in advance of a Change of Control as may be required by law described in clause (viii) below (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;
(iv) that any Security Note not properly tendered or accepted for payment shall will remain outstanding and continue to accrue interest;
(viv) that Securities unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrue interest after interest, on the Change of Control Payment Date;
(viv) that Holders electing to have a Security any Notes purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall will be required to surrender their Securitiessuch Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly Notes completed, or transfer the relevant Security by book-entry transfer, to the paying agent Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(viiivi) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(vii) that Holders whose Securities Notes are being purchased only in part shall will be issued new Securities Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Securities surrendered Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(viii) if such notice is delivered prior to the consummation of a Change of Control, stating that the Change of Control Offer is conditioned on the Change of Control Triggering Event occurring on or transferred by book-entry transfer)prior to the Change of Control Payment Date; and
(ix) the CUSIP numberother instructions, as determined by the Issuer, consistent with this Section 3.04, that a Holder must follow. The Paying Agent will promptly deliver to each Holder of the Notes tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any, printed on the Securities being repurchased and ; provided that no representation is made as to the correctness each such new Note will be in a principal amount of $2,000 or accuracy an integral multiple of the CUSIP number, if any, listed $1,000 in such notice or printed on the Securitiesexcess thereof. The Issuer shall will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date.
(b) On the Change of Control Payment Date, the Issuer will, to the extent permitted by law,
(i) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer,
(ii) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
(c) The Issuer will not be required to make a Change of Control Offer following a Change of Control if (i) a third party makes such an offer the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements for such an offer set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and such third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offersuch Change of Control Offer or (ii) a notice of redemption of all outstanding Notes has been given pursuant to this Indenture as described under Section 5.07, unless and until there is a default in the payment of the redemption price on the applicable Redemption Date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied. In addition, the Issuer will not repurchase any Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture, other than a Default in the payment of the Change of Control Payment upon a Change of Control Triggering Event. Notwithstanding anything to the contrary in this Section 3.04, a Change of Control Offer may be made in advance of the consummation of a Change of Control, conditional upon the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
(d) The Issuer shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder applicable to the extent such laws and regulations are applicable in connection with the repurchase of Securities the Notes pursuant to a Change of Control Offerthis Section 3.04. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions of this Section 1009Indenture, the Issuer shall will comply with the applicable those securities laws and regulations and shall will not be deemed not to have breached its obligations under the Change of Control Offer provisions of this Indenture by virtue thereofof any such conflict.
Appears in 1 contract
Samples: Indenture (Yum Brands Inc)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that (a) Unless the Issuer make an offer has previously or concurrently sent a redemption notice with respect to purchase upon a all existing Notes pursuant to Section 3.07 and all conditions precedent applicable to such redemption notice have been satisfied, within 30 days following any Change of Control Triggering Event shall be purchased by or, at the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for option of the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Issuer, prior to any Change of Control Triggering Event, unless but after public announcement of the Issuer has previously exercised its right to redeem transaction or transactions that constitute or may constitute the Securities in accordance with their respective terms, each Holder of Securities of such series will have the right to require the Issuer to purchase all or a portion of such Holder’s Securities pursuant to the offer described below (the “Change of Control Offer”)Triggering Event, the Issuer will commence an Offer to Purchase for all Notes then outstanding at a purchase price in cash equal to 101% of the principal amount thereof of the Notes, plus accrued and unpaid interest, if any, to, but not including, the Payment Date. The Offer to Purchase will, if sent prior to the date of purchase, subject to the rights of Holders of the Securities on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following the date upon which the Change of Control Triggering Event occurredoccurs, or at the Issuer’s option, prior to any Change of Control, but after the public announcement of the pending Change of Control, the Issuer shall send, by first class mail, a notice to each Holder of Securities of such series, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute or may constitute the Change of Control Triggering Event, and shall state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on the date specified in such notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, other than as may be required by law (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer to Purchase is conditioned on the Change of Control being consummated Triggering Event occurring on or prior to the Change of Control applicable Payment Date;.
(ivb) Subject to Section 4.13(c), the provisions described above that any Security not tendered or accepted for payment shall continue require the Issuer to accrue interest;
(v) that Securities accepted for payment pursuant make an Offer to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi) that Holders electing to have a Security purchased pursuant to Purchase following a Change of Control Offer may elect to have all, or Triggering Event will be applicable regardless of whether any portion other provisions of such Security, purchased;this Indenture are applicable.
(viic) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior to the Change of Control Payment Date;
(viii) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ix) the CUSIP number, if any, printed on the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall will not be required to make an Offer to Purchase upon a Change of Control Offer Triggering Event if a third party makes such an offer the Offer to Purchase in the manner, at the times and otherwise in compliance with the requirements for such set forth in this Indenture applicable to an offer Offer to Purchase made by the Issuer and such third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offer. such Offer to Purchase.
(d) If Holders of not less than 90.0% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer to Purchase and the Issuer, or any third party making an Offer to Purchase in lieu of the Issuer as described above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer to Purchase described above, to redeem all Notes that remain outstanding following such purchase at a redemption price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to, but not including, such purchase date.
(e) The Issuer shall comply will comply, to the extent applicable, with the requirements of Rule 14e-1 under Section 14(e) of the Exchange Act and any other securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to Notes as a result of a Change of Control OfferTriggering Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 10094.13, the Issuer shall will comply with the applicable securities laws and regulations and shall will not be deemed not to have breached its obligations under this Indenture Section 4.13 by virtue thereofof its compliance with such securities laws or regulations.
(f) If the terms of any Credit Facility prohibit the Issuer from making an Offer to Purchase or from purchasing the Notes pursuant thereto, prior to the sending of the notice to Holders, but in any event within 30 days following any Change of Control Triggering Event, the Issuer covenants to:
(1) repay in full all Indebtedness outstanding under such Credit Facilities or offer to repay in full all such Indebtedness and repay the Indebtedness of each lender who has accepted such offer; or
(2) obtain the requisite consent under such Credit Facilities to permit the purchase of the Notes as described above.
(g) The Issuer must first comply with clause (f) of this Section 4.13 before it will be required to purchase Notes in the event of a Change of Control Triggering Event; provided, however, that the Issuer’s failure to comply with clause (f) of this Section 4.13 or to make a Change of Control Offer to Purchase because of any such failure shall constitute a Default described in clause (4) in Section 6.01 (and not under clause (3) in Section 6.01 hereof); provided further, if the Issuer has instituted any liability management procedures or is otherwise engaged in obtaining the requisite consents under such Credit Facilities to permit the purchase of the Notes (such engagement to be determined by the Issuer in its sole discretion), the Issuer shall have an additional 30 days following the initial 30-day period after the occurrence of a Change of Control Triggering Event to secure such consents and no Default shall have occurred if such consents are obtained within such 30-day period.
(h) If any such Offer to Purchase is subject to satisfaction of one or more conditions precedent, such notice will describe each such condition, and if applicable, will state that, in the Issuer’s discretion, the Payment Date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption or purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Payment Date, or by the Payment Date as so delayed, in each case in accordance with Section 3.03 hereof.
(i) On the Payment Date, the Issuer will:
(1) accept for payment on a pro rata basis Notes or portions thereof tendered pursuant to an Offer to Purchase;
(2) deposit with the applicable paying agent money sufficient, as determined by the Issuer, to pay the purchase price of all Notes or portions thereof so accepted; and
(3) promptly thereafter deliver, or cause to be delivered, to the Trustee all Notes or portions thereof so accepted together with an Officer’s Certificate specifying the Notes or portions thereof accepted for payment by the Issuer. The Paying Agent will promptly deliver to the Holders so accepted payment in an amount equal to the purchase price, and the Trustee will promptly authenticate and deliver to such Holders a new Note equal in principal amount to any unpurchased portion of any Note surrendered; provided that each Note purchased and each new Note issued will be in a principal amount of $2,000 and any higher integral multiple of $1,000. The Issuer will publicly announce the results of an Offer to Purchase as soon as practicable after the Payment Date.
Appears in 1 contract
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such seriesa) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has previously exercised its right to redeem the Securities in accordance with their respective terms, each Holder of Securities of such series will shall have the right to require the Issuer Company to purchase all or a portion of repurchase such Holder’s Securities pursuant to the offer described below (the “Change of Control Offer”), Notes at a purchase price in cash equal to 101% of the principal amount thereof on the date of purchase plus accrued and unpaid interest, if any, to the date of purchase, purchase (subject to the rights right of Holders of the Securities record on the relevant Record Date to receive interest due on the relevant Interest Payment Date. ).
(b) Within 30 days following the date upon which the any Change of Control Triggering Event shall have occurred, or the Company shall mail a notice by first-class mail to each Holder with a copy to the Trustee (the “Change of Control Offer”) or, at the IssuerCompany’s option, prior to any Change of Control, Control but after the public announcement of the pending Change of Control, the Issuer shall send, by first class mail, a notice to each Holder of Securities of such series, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute the Change of Control and shall statestating:
(i) that the a Change of Control Offer is being made pursuant has occurred and that such Holder has the right to this Section 1009 require the Company to purchase such Holder’s Notes at a purchase price in cash equal to 101% of this Indenturethe 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 relevant Record Date to receive interest on the relevant Interest Payment Date);
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on the date specified in such notice, (which date shall be no earlier than 30 days and no nor later than 60 days from the date such notice is mailed, other than as may be required by law (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;
(iv) that any Security not tendered or accepted for payment shall continue to accrue interest;
(v) that Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior to the Change of Control Payment Date;
(viii) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ixiii) the CUSIP numberinstructions, if anyas determined by the Company, printed on consistent with the Securities being repurchased and covenant described hereunder, that no representation is made as a Holder must follow in order to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. have its Notes purchased.
(c) The Issuer Company shall not be required to make a Change of Control Offer following a Change of Control if a third party makes such an offer the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements for such an offer herein applicable to a Change of Control Offer made by the Issuer Company and such the third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offer. such Change of Control Offer.
(d) A Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement has been entered into with respect to such Change of Control at the time of making of the Change of Control Offer.
(e) The Issuer Company shall comply comply, to the extent applicable, with the requirements of Rule 14e-1 under Section 14(e) of the Exchange Act and any other securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to Notes as a result of a Change of Control OfferControl. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Offer provisions of contained in this Section 1009Article 4, the Issuer Company shall comply with the applicable securities laws and regulations and shall not be deemed not to have breached its obligations under the Change of Control Offer provisions contained in this Indenture Article 4 by virtue thereofof its compliance with such securities laws or regulations.
Appears in 1 contract
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of (a) Unless the Company has previously or concurrently sent a redemption notice with respect to all existing Notes as described in Section 3.07 and all conditions precedent applicable to such redemption notice have been satisfied, within 30 days following any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by or, at the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for option of the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Company, prior to any Change of Control Triggering Event, unless but after public announcement of the Issuer has previously exercised its right to redeem transaction or transactions that constitute or may constitute the Securities in accordance with their respective terms, each Holder of Securities of such series will have the right to require the Issuer to purchase all or a portion of such Holder’s Securities pursuant to the offer described below (the “Change of Control Offer”)Triggering Event, the Company shall be required to commence a Change of Control Offer to Purchase for all Notes then outstanding at a purchase price in cash equal to 101% of the principal amount thereof of the Notes, plus accrued and unpaid interest, if any, to the date of purchase, subject to the rights of Holders of the Securities on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following The Change of Control Offer to Purchase will, if sent prior to the date upon on which the Change of Control Triggering Event occurredoccurs, or at the Issuer’s option, prior to any Change of Control, but after the public announcement of the pending Change of Control, the Issuer shall send, by first class mail, a notice to each Holder of Securities of such series, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute or may constitute the Change of Control Triggering Event, and shall state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on the date specified in such notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, other than as may be required by law (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer to Purchase is conditioned on the Change of Control being consummated Triggering Event occurring on or prior to the Change of Control applicable Payment Date;.
(ivb) Subject to Section 4.13(c), the provisions described above that any Security not tendered or accepted for payment shall continue require the Company to accrue interest;
(v) that Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi) that Holders electing to have a Security purchased pursuant to make a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to Purchase following a Change of Control Offer shall Triggering Event will be required to surrender their Securities, with the form entitled “Option applicable regardless of Holder to Elect Purchase” on the reverse whether any other provisions of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior to the Change of Control Payment Date;this Indenture are applicable.
(viiic) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ix) the CUSIP number, if any, printed on the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall Company will not be required to make a Change of Control Offer to Purchase upon a Change of Control Triggering Event if a third party makes such an offer the Change of Control Offer to Purchase in the manner, at the times and otherwise in compliance with the requirements for such set forth in this Indenture applicable to an offer Offer to Purchase made by the Issuer Company and such third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offer. such Offer to Purchase.
(d) At any time, in connection with any tender offer or other Offer to Purchase the Notes (including pursuant to a Change of Control Offer to Purchase or an Asset Sale Offer to Purchase), if not less than 90% in aggregate principal amount of the outstanding Notes are purchased by the Issuers, or, in the case of a Change of Control Offer to Purchase, any third party purchasing or acquiring Notes in lieu of the Issuers, the Issuers or such third party will have the right, upon notice as described herein, to redeem the Notes that remain outstanding following such purchase at the price paid to Holders in such purchase, plus accrued and unpaid interest thereon, if any, to, but excluding, the applicable redemption date (subject to the right of
(e) The Issuer shall comply Company will comply, to the extent applicable, with the requirements of Rule 14e-1 under Section 14(e) of the Exchange Act and any other securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to Notes as a result of a Change of Control OfferTriggering Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 10094.13, the Issuer shall Company will comply with the applicable securities laws and regulations and shall will not be deemed not to have breached its obligations under this Indenture Section 4.13 by virtue thereofof its compliance with such securities laws or regulations.
(f) If the terms of any Credit Facility prohibit the Company from making a Change of Control Offer to Purchase or from purchasing the Notes pursuant thereto, prior to the sending of the notice to Holders, but in any event within 30 days following any Change of Control Triggering Event, the Company covenants to: (1) repay in full all Indebtedness outstanding under such Credit Facilities or offer to repay in full all such Indebtedness and repay the Indebtedness of each lender who has accepted such offer; or (2) obtain the requisite consent under such Credit Facilities to permit the purchase of the Notes as described above.
(g) The Company must first comply with clause (f) of this Section 4.13 before it will be required to purchase Notes in the event of a Change of Control Triggering Event; provided, however, that the Company’s failure to comply with clause (f) of this Section 4.13 or to make a Change of Control Offer to Purchase because of any such failure shall constitute a Default described in clause (4) in Section 6.01 (and not under clause (3) in Section 6.01 hereof); provided further, if the Company has instituted any liability management procedures or is otherwise engaged in obtaining the requisite consents under such Credit Facilities to permit the purchase of the Notes (such engagement to be determined by the Company in its sole discretion), the Company shall have an additional 30 days following the initial 30-day period after the occurrence of a Change of Control Triggering Event to secure such consents and no Default shall have occurred if such consents are obtained within such 30-day period. Section 4.14
Appears in 1 contract
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has previously Issuers have exercised its their right to redeem the Securities in accordance with their respective termsall outstanding Notes of a series pursuant to Section 3.07, each Holder of Securities Notes of such series will have the right to require the Issuer Issuers to purchase all or a portion (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Securities Notes pursuant to the offer described below (the “Change of Control Offer”), at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to to, but excluding, the date of purchasepurchase (the “Change of Control Payment”), subject to the rights of Holders of the Securities on the relevant Record Date record date to receive interest due on the relevant Interest Payment Date. Within 30 days following the date upon which the Change of Control Triggering Event occurred, or or, at the Issuer’s Issuers’ option, prior to and conditioned on the occurrence of, any Change of Control, but after the public announcement of the pending transaction that constitutes or may constitute the Change of Control, the Issuer shall send, by first class mail, Issuers will deliver a notice to each Holder of Securities of such seriesHolder, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute the Change of Control and shall will state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, among other things, the purchase price and, that on the date specified in such noticedate, which date shall must be no earlier than 30 days and no nor later than 60 days from the date such notice is mailedsent and, if the notice is sent prior to the Change of Control, no earlier than the date of the occurrence of the Change of Control, other than as may be required by law (the “Change of Control Payment Date”). The notice will, the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed sent prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated Triggering Event occurring on or prior to the Change of Control Payment Date;
(iv) that any Security not tendered or accepted for payment shall continue to accrue interest;
(v) that Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior to the Change of Control Payment Date;
(viii) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ix) the CUSIP number, if any, printed on the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall not be required to make a Change of Control Offer if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer and such third party purchases all corresponding Securities of such series properly tendered and not withdrawn under its offer. The Issuer shall Issuers must comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase purchase of Securities the Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 10094.09, the Issuer shall Issuers will comply with the applicable those securities laws and regulations and shall will not be deemed not to have breached its their obligations under this Indenture Section 4.09 by virtue of such conflicts. Holders of Definitive Notes electing to have a note purchased pursuant to a Change of Control Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified in the notice. Holders of Global Notes must transfer their Notes to the Paying Agent by book-entry transfer pursuant to the Applicable Procedures of the Paying Agent and DTC (in the case of Global Notes), in each case prior to the Close of Business on the third Business Day prior to the Change of Control Payment Date. On the Change of Control Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased. The Paying Agent will promptly pay to each Holder of Notes of each applicable series properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate (or cause to be transferred by book-entry) a new Note of such series equal in principal amount to any unpurchased portion of any Notes of such series surrendered; provided that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Notwithstanding anything to the contrary in this Section 4.09, the Issuers will not be required to make a Change of Control Offer if a third party makes such an offer in the manner and at the times required and otherwise in compliance with the requirements applicable to such an offer had it been made by the Issuers, and such third party purchases all Notes properly tendered and not withdrawn under its offer. In addition, the Issuers may not repurchase any Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default hereunder, other than a Default in the payment of the Change of Control Payment upon a Change of Control Triggering Event.
Appears in 1 contract
Samples: Indenture (Broadcom Cayman L.P.)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such seriesa) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has previously exercised its right to redeem the Securities in accordance with their respective terms, each Holder of Securities of such series will have the right to require the Issuer to purchase all or shall make an offer (a portion of such Holder’s Securities pursuant to the offer described below (the “Change of Control Offer”), ) to each Holder to repurchase all or any part (equal to US$200,000 or an integral multiple of US$1,000 in excess of US$200,000) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interestinterest on the Notes purchased, if any, to (but excluding) the date of purchase, purchase (subject to the rights right of Holders holders of the Securities record on the relevant Record Date record date to receive interest due on the relevant Interest Payment Dateinterest payment date), except to the extent the Issuer has previously or concurrently elected to redeem the Notes in full as described in Section 3.07 or Section 3.10 (the “Change of Control Payment”). Within 30 ten days following the date upon which the any Change of Control Triggering Event occurred, or at the Issuer’s option, prior to any Change of Control, but after the public announcement of the pending Change of ControlEvent, the Issuer shall send, by first class mail, mail a notice to each Holder of Securities of such series, (with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe ) describing the transaction or transactions that constitute the Change of Control Triggering Event and shall statestating:
(i1) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture4.08 and that all Notes tendered shall be accepted for payment;
(ii2) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on and the date specified in such noticepurchase date, which date shall be no earlier than 30 10 days and no later than 60 days from the date such notice is mailed, other than as may be required by law delivered (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;
(iv3) that any Security Note not tendered or accepted for payment shall continue to accrue interest;; ASIA 33951818 40
(v4) that Securities that, unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi5) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities Notes purchased pursuant to a Change of Control Offer shall be required to surrender their Securitiesthe Notes, with the form entitled “Option of Holder to Elect Purchase” on attached to the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly Notes completed, or transfer the relevant Security by book-entry transfer, to the paying agent Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(viii6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Xxxxxx is withdrawing his election to have the Notes purchased; and
(7) that Holders whose Securities Notes are being purchased only in part shall be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities surrendered Notes surrendered, which unpurchased portion must be equal to US$200,000 or in integral multiples of US$1,000 in excess of US$200,000. To the extent that the provisions of any applicable securities laws or regulations conflict with the provisions of this Section 4.08 and Section 4.10, the Issuer shall not be deemed to have breached its obligations under this Section 4.08 by virtue of its compliance with such laws and regulations.
(b) On the Change of Control Payment Date, the Issuer shall, to the extent lawful:
(1) accept for payment all Notes or transferred by book-entry transfer)portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and
(ix3) deliver or cause to be delivered to the CUSIP numberTrustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuer. The Paying Agent shall promptly deliver to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and deliver (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any, printed ; provided that each new Note shall be in a principal amount of US$200,000 or in integral multiples of US$1,000 in excess of US$200,000. The Issuer shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Securities being repurchased and that no representation is made as Change of Control Payment Date.
(c) Notwithstanding anything to the correctness or accuracy of contrary in this Section 4.08, the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall not be required to make a Change of Control Offer upon a Change of Control Triggering Event if (1) a third party makes such an offer the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer set forth in this Section 4.08 and such third party purchases all corresponding Securities of such series properly Notes ASIA 33951818 41 validly tendered and not withdrawn under its offer. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that any securities laws Offer or regulations conflict with the provisions (2) a notice of this redemption has been given pursuant to Section 10093.07, the Issuer shall comply with 3.09 or 3.10 hereof, unless and until there is a default in payment of the applicable securities laws and regulations and shall be deemed not to have breached its obligations under this Indenture by virtue thereofredemption price.
Appears in 1 contract
Samples: Indenture (Wynn Resorts LTD)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such seriesa) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has previously exercised its right to redeem the Securities in accordance with their respective terms, each Holder of Securities of such series will have the right to require the Issuer to purchase all or shall make an offer (a portion of such Holder’s Securities pursuant to the offer described below (the “Change of Control Offer”), ) to each Holder to repurchase all or any part (equal to US$200,000 or an integral multiple of US$1,000 in excess of US$200,000) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interestinterest on the Notes purchased, if any, to (but excluding) the date of purchase, purchase (subject to the rights right of Holders holders of the Securities record on the relevant Record Date record date to receive interest due on the relevant Interest Payment Dateinterest payment date), except to the extent the Issuer has previously or concurrently elected to redeem the Notes in full as described in Section 3.07 or Section 3.10 (the “Change of Control Payment”). Within 30 ten days following the date upon which the any Change of Control Triggering Event occurred, or at the Issuer’s option, prior to any Change of Control, but after the public announcement of the pending Change of ControlEvent, the Issuer shall send, by first class mail, mail a notice to each Holder of Securities of such series, (with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe ) describing the transaction or transactions that constitute the Change of Control Triggering Event and shall state:stating: ASIA 33616188 45
(i1) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture4.08 and that all Notes tendered shall be accepted for payment;
(ii2) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on and the date specified in such noticepurchase date, which date shall be no earlier than 30 10 days and no later than 60 days from the date such notice is mailed, other than as may be required by law delivered (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;
(iv3) that any Security Note not tendered or accepted for payment shall continue to accrue interest;
(v4) that Securities that, unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi5) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities Notes purchased pursuant to a Change of Control Offer shall be required to surrender their Securitiesthe Notes, with the form entitled “Option of Holder to Elect Purchase” on attached to the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly Notes completed, or transfer the relevant Security by book-entry transfer, to the paying agent Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(viii6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Xxxxxx is withdrawing his election to have the Notes purchased; and
(7) that Holders whose Securities Notes are being purchased only in part shall be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities surrendered Notes surrendered, which unpurchased portion must be equal to US$200,000 or in integral multiples of US$1,000 in excess of US$200,000. To the extent that the provisions of any applicable securities laws or regulations conflict with the provisions of this Section 4.08 and Section 4.10, the Issuer shall not be deemed to have breached its obligations under this Section 4.08 by virtue of its compliance with such laws and regulations.
(b) On the Change of Control Payment Date, the Issuer shall, to the extent lawful:
(1) accept for payment all Notes or transferred by book-entry transfer)portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and
(ix3) deliver or cause to be delivered to the CUSIP numberTrustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuer. The Paying Agent shall promptly deliver to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and deliver (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any, printed ; provided that each new Note shall be in a principal amount of US$200,000 or in integral multiples of US$1,000 in excess of US$200,000. The Issuer shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Securities being repurchased and that no representation is made as Change of Control Payment Date.
(c) Notwithstanding anything to the correctness or accuracy of contrary in this Section 4.08, the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall not be required to make a Change of Control Offer upon a Change of Control Triggering Event if (1) a third party makes such an offer the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer set forth in this Section 4.08 and such third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offer. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that any securities laws Offer or regulations conflict with the provisions (2) a notice of this redemption has been given pursuant to Section 10093.07, the Issuer shall comply with 3.09 or 3.10 hereof, unless and until there is a default in payment of the applicable securities laws and regulations and shall be deemed not to have breached its obligations under this Indenture by virtue thereofredemption price.
Appears in 1 contract
Samples: Indenture (Wynn Resorts LTD)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon If a Change of Control Triggering Event shall be purchased by occurs, the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has previously exercised its right to redeem the Securities in accordance with their respective terms, each Holder of Securities of such series will have the right to require the Issuer to purchase all or a portion of such Holder’s Securities pursuant to the make an offer described below (the “Change of Control Offer”)) to each Holder of Notes to repurchase (at such Holder’s option) all or any part (in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes on the terms described below. In the Change of Control Offer, at a purchase price the Issuer will offer payment in cash equal to 101% of the principal amount thereof of the Notes repurchased, plus accrued and unpaid interest, if any, to on the Notes (or portions thereof) repurchased to, but excluding, the date of purchaserepurchase (the “Change of Control Payment”); provided that, subject notwithstanding the foregoing, payments of interest on the Notes that are due and payable on any Interest Payment Dates falling on or prior to such a date of repurchase (other than an Interest Payment Date falling on the final maturity date of the Notes) will be payable to the rights of Holders of those Notes registered as such at the Securities close of business on the relevant Record Date to receive interest due on record dates in accordance with their terms and the relevant Interest Payment Dateterms of the Indenture. Within 30 days following any Change of Control Triggering Event, the date upon which Issuer will mail (or cause to be mailed) a notice (the “Change of Control Purchase Notice”) to all Holders of Notes (with a copy to the Trustee) describing the transaction or transactions constituting the Change of Control Triggering Event occurred, or at and offering to repurchase the Issuer’s option, prior to any Change of Control, but after the public announcement of the pending Change of Control, the Issuer shall send, by first class mail, a notice to each Holder of Securities of such series, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute the Change of Control and shall state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that Notes on the date specified in such notice, which date shall will be a business day no earlier than 30 days and no later than 60 days from after the date such notice is mailed, other than as may be required by law mailed (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;
(iv) that any Security not tendered or accepted for payment shall continue to accrue interest;
(v) that Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi) that . Holders electing to have a Security purchased Note or portion thereof repurchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall will be required to surrender their Securitiesthe Note (which, with in the form entitled “Option case of Holder Notes in book entry form, may be by book entry transfer) to Elect Purchase” on the reverse of the relevant Security, Trustee (or to such other customary documents of surrender and transfer agent as may be appointed by the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent for such purpose) at the address specified in the notice applicable Change of Control Purchase Notice prior to the close of business on the business day immediately preceding the applicable Change of Control Payment Date and to comply with other procedures set forth in such Change of Control Purchase Notice. As used in the preceding sentence and in the last sentence of the preceding paragraph, the term “business day” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which commercial banks are authorized or required by law, regulation or executive order to close in The City of New York. On any Change of Control Payment Date;
(viii) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ix) the CUSIP number, if any, printed on the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall not be required to make a Change of Control Offer if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer and such third party purchases all corresponding Securities of such series properly tendered and not withdrawn under its offer. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder will, to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that any securities laws or regulations conflict with the provisions of this Section 1009, the Issuer shall comply with the applicable securities laws and regulations and shall be deemed not to have breached its obligations under this Indenture by virtue thereof.lawful:
Appears in 1 contract
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series (a) In the event that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Eventoccurs, unless the Issuer Company has previously irrevocably exercised its right to redeem any series of the Securities in accordance with their respective termsNotes under Section 3.03 hereof without such redemption being subject to any conditions precedent, each Holder of Securities of such series or a Special Mandatory Redemption has occurred under Section 3.04 hereof, Holders will have the right right, at such Holder’s option, to require the Issuer Company to purchase for cash any or all or a portion of such Holder’s Securities pursuant Notes in integral multiples of $1,000 original principal amount. The Company will make an offer to purchase all the offer described below Notes (the “Change of Control Offer”), ) at a purchase price equal to 101% of the aggregate principal amount thereof of the Notes to be purchased plus accrued and unpaid interest, if any, to to, but excluding, the date of purchasethe Notes are purchased, if any, subject to the rights right of Holders of the Securities Notes of record on the relevant Record Date record date to receive interest due on the relevant Interest Payment Date. interest payment date (the “Change of Control Payment”).
(b) Within 30 60 days following the date upon which the any Change of Control Triggering Event occurredEvent, or at the Issuer’s option, prior to any Company will send notice of such Change of Control, but after the public announcement of the pending Change of Control, the Issuer shall send, by first class mail, a notice Control Offer to each Holder of Securities each series of such seriesNotes in accordance with the procedures of DTC, with a copy to the Trustee, which notice shall govern with the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute the Change of Control and shall statefollowing information:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 4.02 and that all Notes properly tendered pursuant to such Change of this IndentureControl Offer will be accepted for payment by the Company;
(ii) that the Issuer is required to offer to purchase all date of the outstanding principal amount Change of Securities, Control Triggering Event;
(iii) the purchase price and, that on the date specified in such noticedate, which date shall will be no earlier than 30 days and no later than 60 days from after the date such the notice of the occurrence of the Change of Control Triggering Event is mailed, other than as may be required by law which the Company must purchase the Notes (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;
(iv) the price that the Company must pay for the Notes it is obligated to purchase;
(v) the name and address of the Trustee;
(vi) that any Security Notes not properly tendered or accepted for payment shall will remain outstanding and continue to accrue interest;
(vvii) that Securities unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrue interest after the Change of Control Payment Date;
(vi) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior to the Change of Control Payment Date;
(viii) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount the procedures for surrendering Notes to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer)paying agent for payment; and
(ix) the CUSIP numberprocedures by which a Holder may withdraw such a tender after it is given. In connection with any purchase of Notes after a Change of Control Triggering Event, the Company will comply with all federal and state securities laws, including, specifically, Rule 13e-4, if anyapplicable, printed on under the Securities being repurchased Exchange Act, and any related Schedule 13E-4 required to be submitted under that no representation is made as rule.
(c) On the Change of Control Payment Date, the Company will be obligated, to the correctness extent lawful, to:
(i) accept for payment Notes of each series or accuracy portions of Notes properly tendered (subject to minimum denomination requirements);
(ii) deposit with the CUSIP number, if any, listed paying agent an amount equal to the Change of Control Payment in such notice respect of all Notes or printed on portions of Notes properly tendered; and
(iii) deliver or cause to be delivered to the Securities. trustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased.
(d) The Issuer shall Company will not be required to make a Change of Control Offer following a Change of Control Triggering Event if a third party makes such an offer the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements for such an offer set forth in this Section 4.02 applicable to a Change of Control Offer made by the Issuer Company and such third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offer. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To Notwithstanding anything to the extent that contrary herein, a Change of Control Offer may be made in advance of a Change of Control Triggering Event, conditional upon such Change of Control Triggering Event, if a definitive agreement is in place for the Change of Control at the time of the making of the Change of Control Offer.
(e) Notwithstanding any securities laws or regulations conflict with provision to the provisions of contrary in this Section 1009Indenture, the Issuer Company shall comply with not purchase any Notes if there has occurred and is continuing an Event of Default, unless such Event of Default results from the applicable securities laws and regulations and shall be deemed not Company’s failure to have breached its obligations under this Indenture by virtue thereofpay the Change of Control Payment following the occurrence of a Change of Control Triggering Event.
Appears in 1 contract
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon If a Change of Control Triggering Event shall be purchased by occurs, the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has previously exercised its right to redeem the Securities in accordance with their respective terms, each Holder of Securities of such series will have the right to require the Issuer to purchase all or a portion of such Holder’s Securities pursuant to the make an offer described below (the “Change of Control Offer”)) to each Holder of Notes to repurchase (at such Holder’s option) all or any part (in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes on the terms described below. In the Change of Control Offer, at a purchase price the Issuer will offer payment in cash equal to 101% of the principal amount thereof of the Notes repurchased, plus accrued and unpaid interest, if any, to on the Notes (or portions thereof) repurchased to, but excluding, the date of purchaserepurchase (the “Change of Control Payment”); provided that, subject notwithstanding the foregoing, payments of interest on the Notes that are due and payable on any dates falling on or prior to such a date of repurchase will be payable to the rights of Holders of those Notes registered as such at the Securities close of business on the relevant Record Date to receive interest due on record dates in accordance with their terms and the relevant Interest Payment Dateterms of the Indenture. Within 30 days following any Change of Control Triggering Event, the date upon which Issuer will mail (or cause to be mailed) a notice (the “Change of Control Purchase Notice”) to all Holders of Notes (with a copy to the Trustee) describing the transaction or transactions constituting the Change of Control Triggering Event occurred, or at and offering to repurchase the Issuer’s option, prior to any Change of Control, but after the public announcement of the pending Change of Control, the Issuer shall send, by first class mail, a notice to each Holder of Securities of such series, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute the Change of Control and shall state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that Notes on the date specified in such notice, which date shall will be a business day no earlier than 30 days and no later than 60 days from after the date such notice is mailed, other than as may be required by law mailed (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;
(iv) that any Security not tendered or accepted for payment shall continue to accrue interest;
(v) that Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi) that . Holders electing to have a Security purchased Note or portion thereof repurchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall will be required to surrender their Securitiesthe Note (which, with in the form entitled “Option case of Holder to Elect Purchase” on the reverse of the relevant SecurityNotes in book-entry form, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security be by book-entry transfer, ) to the paying Trustee (or to such other agent as may be appointed by the Issuer for such purpose) at the address specified in the notice applicable Change of Control Purchase Notice prior to the close of business on the business day immediately preceding the applicable Change of Control Payment Date and to comply with other procedures set forth in such Change of Control Purchase Notice. As used in the preceding sentence and in the last sentence of the preceding paragraph, the term “business day” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which commercial banks are authorized or required by law, regulation or executive order to close in The City of New York. On any Change of Control Payment Date;
(viii) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ix) the CUSIP number, if any, printed on the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall not be required to make a Change of Control Offer if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer and such third party purchases all corresponding Securities of such series properly tendered and not withdrawn under its offer. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder will, to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that any securities laws or regulations conflict with the provisions of this Section 1009, the Issuer shall comply with the applicable securities laws and regulations and shall be deemed not to have breached its obligations under this Indenture by virtue thereof.lawful:
Appears in 1 contract
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such seriesa) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has previously exercised its right to redeem the Securities in accordance with their respective terms, each Holder of Securities of such series will shall have the right to require the Issuer Company to purchase all or a portion of such Holder’s Securities pursuant Notes in whole or in part (equal to the offer described below (the “Change $2,000 or an integral multiple of Control Offer”), $1,000 in excess thereof) at a purchase price equal to 101% of the principal amount thereof of such Notes, plus accrued and unpaid interest, if any, to the date of purchase, repurchase (subject to the rights of Holders of the Securities record on the relevant Record Date interest record date to receive interest due on the relevant Interest Payment Date. interest payment date), pursuant to and in accordance with the offer described in this Section 4.03, provided that after giving effect to the purchase, any Notes that remain outstanding shall have a denomination of $2,000 or integral multiples of $1,000 in excess thereof.
(b) Within 30 days following the date upon which the any Change of Control Triggering Event occurredEvent, or at unless the Issuer’s option, prior Company has exercised its right to any Change of Control, but after the public announcement redeem all of the pending Change of ControlNotes pursuant to Section 3.03 hereof, the Issuer Company shall send, send by first class mail, mail a notice (the “Change of Control Offer”) to each Holder of Securities of such seriesHolder, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute the Change of Control and shall state:
(i) that the such Change of Control Offer is being made pursuant Triggering Event has occurred and that such Holder has the right to this Section 1009 require the Company to repurchase such Holder’s Notes at a purchase price in cash equal to 101% of this Indenturethe principal amount of the Notes plus accrued and unpaid interest, if any, to the date of repurchase (subject to the rights of Holders of records on the relevant interest record date to receive interest due on the relevant interest payment date) (the “Change of Control Payment”);
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on the date specified in such noticeof repurchase, which date shall be a Business Day that is no earlier than 30 days and no nor later than 60 days from the date such notice the Change of Control Offer is mailed, other than as may be required by law (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) the procedures determined by the Company, consistent with the Indenture, that a Holder must follow in order to have its Notes repurchased; and
(iv) if the notice is mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on upon the Change of Control being consummated on or prior to the Change of Control Payment Date;.
(ivc) that any Security On the Change of Control Payment Date, the Company shall, to the extent lawful, accept for payment, all Notes or portions thereof validly tendered and not tendered or accepted for payment shall continue to accrue interest;
(v) that Securities accepted for payment withdrawn pursuant to the Change of Control Offer Offer, and shall cease deposit with the Paying Agent an amount equal to accrue interest after the Change of Control Payment Date;in respect of all Notes or portions of Notes so tendered. The Company shall also deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased by the Company. The Paying Agent shall promptly mail to each tendering Holder the Change of Control Payment for the Notes tendered by such Holder and accepted by the Company for purchase, and the Trustee, upon receipt of an order from the Company, shall promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Note surrendered, if any, provided that each such new Note shall be in a principal amount of $2,000 and integral multiples of $1,000 in excess thereof.
(vid) that If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, shall be paid to the Person in whose name a Note is registered at the close of business on such interest record date, and no additional interest will be payable to Holders who tender pursuant to the Change of Control Offer.
(e) Holders of Notes electing to have a Security Notes purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall will be required to surrender their SecuritiesNotes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly Note completed, or transfer the relevant Security by book-entry transfer, to the paying agent Paying Agent at the address specified in the notice notice, or transfer their Notes to the Paying Agent by book-entry transfer pursuant to the applicable procedures of the Paying Agent, prior to the close of business on the third Business Day prior to the Change of Control Payment Date;.
(viiif) that Holders whose Securities are purchased only The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act in part shall be issued new Securities equal in principal amount connection with the repurchase of Notes pursuant to a Change of Control Offer hereunder. To the unpurchased portion extent the provisions of any securities laws or regulations conflict with the provisions of the Securities surrendered (or transferred Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Indenture by book-entry transfer); andvirtue of such conflict.
(ixg) the CUSIP number, if any, printed on the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer Company shall not be required to make a Change of Control Offer if a third party makes such an offer in the manner, manner and at the times required and otherwise in compliance with the requirements for such an offer made by the Issuer Company, and such third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offer. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that any securities laws or regulations conflict with the provisions of this Section 1009, the Issuer shall comply with the applicable securities laws and regulations and shall be deemed not to have breached its obligations under this Indenture by virtue thereof.
Appears in 1 contract
Samples: First Supplemental Indenture (Trinity Industries Inc)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such seriesa) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering EventEvent (the date of such occurrence, unless the Issuer has previously exercised its right to redeem the Securities in accordance with their respective terms“Change of Control Date”), each Holder of Securities of such series will shall have the right to require the Issuer Company to purchase all such Holder's Notes in whole or in part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) at a portion purchase price (the “Change of Control Purchase Price”) equal to 101% of the principal amount of such Holder’s Securities Notes, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (the “Change of Control Purchase Date”), pursuant to and in accordance with the offer described below in this Section 4.03 (the “Change of Control Offer”), at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase, subject to the rights of Holders of the Securities on the relevant Record Date to receive interest due on the relevant Interest Payment Date. .
(b) Within 30 days following the date upon which the Change of Control Triggering Event occurred, or at Date the Issuer’s option, prior to any Change of Control, but after the public announcement of the pending Change of Control, the Issuer Company shall send, electronically or by first class mail, a notice to each Holder of Securities of such seriesHolder, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute the Change of Control and shall state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture4.03 and that all Notes validly tendered will be accepted for payment;
(ii) that the Issuer is required to offer to purchase all Change of Control Purchase Price and the outstanding principal amount Change of Securities, the purchase price and, that on the date specified in such noticeControl Purchase Date, which date shall be a Business Day that is no earlier than 30 days and no nor later than 60 days from the date such notice is mailed, other than as may be required by law sent (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009) other than as may be required by law;
(iii) if mailed prior that any Note not tendered will continue to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Dateaccrue interest;
(iv) that any Security not tendered or accepted for payment shall continue to accrue interest;
(v) that Securities Note accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment DateDate unless the Company shall default in the payment of the Change of Control Purchase Price of the Notes and the only remaining right of the Holder is to receive payment of the Change of Control Purchase Price upon surrender of the Notes to the Paying Agent;
(viv) that Holders electing to have a Security portion of a Note purchased pursuant to a Change of Control Offer may only elect to have all, such Note purchased in an amount equal to $2,000 or any portion an integral multiple of such Security, purchased$1,000 in excess thereof;
(viivi) that Holders if a Holder of Securities of such series electing a definitive Note elects to have Securities a Note purchased pursuant to a the Change of Control Offer shall it will be required to surrender their Securitiesthe Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly Note completed, or Holders of Global Notes must transfer the relevant Security by book-entry transfer, to the paying agent Paying Agent at the address specified in the notice prior to the close of business on the third Business Day prior to the Change of Control Payment Date;
(vii) that a Holder will be entitled to withdraw its election if the Company receives, not later than the third Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Notes such Holder delivered for purchase, and a statement that such Hxxxxx is withdrawing its election to have such Note purchased; and
(viii) that Holders whose Securities if Notes are purchased only in part shall a new Note of the same type will be issued new Securities equal in principal amount equal to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); andNotes surrendered.
(ixc) On or before the CUSIP number, if any, printed on the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall not be required to make a Change of Control Offer if a third party makes Payment Date, the Company shall, to the extent lawful, accept for payment, all Notes or portions thereof validly tendered pursuant to the Change of Control Offer, and shall deliver to the Trustee an Officer's Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.03. The Company, the Depositary or the Paying Agent, as the case may be, shall promptly mail or deliver to each tendering Holder an offer amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and, in the mannercase of a definitive Note, at the times Company shall promptly issue a new Note, and otherwise the Trustee, upon receipt of a Company Order, shall authenticate and mail or deliver such new Note to such Holder, in compliance with a principal amount equal to any unpurchased portion of the requirements for such an offer made Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Issuer and such third party purchases all corresponding Securities of such series properly tendered and not withdrawn under its offer. Company to the Holder thereof.
(d) The Issuer Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase purchase of Securities Notes pursuant to a Change of Control Offeran offer hereunder. To the extent that the provisions of any securities laws or regulations conflict with the provisions of under this Section 10094.03, the Issuer Company shall comply with the applicable securities laws and regulations and shall not be deemed not to have breached its obligations under this Indenture Section 4.03 by virtue thereof.
(e) The Company shall not be required to make a Change of Control Offer if a third party makes such an offer in the manner and at the times required and otherwise in compliance with the requirements for such an offer made by the Company, and such third party purchases all notes properly tendered and not withdrawn under its offer.
Appears in 1 contract
Samples: Second Supplemental Indenture (Maxim Integrated Products Inc)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon (a) If a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Eventoccurs, unless the Issuer has previously exercised its right option to redeem the Securities in accordance with their respective termsNotes pursuant to Section 5.07 hereof, each Holder of Securities of such series will have the right to require the Issuer shall make an offer to purchase all or a portion of such Holder’s Securities the Notes pursuant to the offer described below in this Section 3.04 (the “Change of Control Offer”), ) at a purchase price in cash equal to 101% of the aggregate principal amount thereof of Notes repurchased plus accrued and unpaid interest, if any, to on the Notes repurchased to, but excluding, the date of purchaserepurchase (the “Change of Control Payment”), subject to the rights right of Holders of the Securities Notes of record on the relevant Record Date record date to receive interest due on the relevant Interest Payment Dateinterest payment date. Within 30 days following the date upon which the any Change of Control Triggering Event occurredor, or at the Issuer’s option, prior to any Change of Control, but after the public announcement of the pending transaction that constitutes or may constitute the Change of Control, the Issuer shall send, by first class mail, a mail notice to each Holder Holders of Securities of such seriesthe Notes, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe describing the transaction that constitutes or transactions that may constitute the Change of Control Triggering Event and shall statewith the following information:
(i) that the a Change of Control Offer is being made pursuant to this Section 1009 3.04, and that all Notes properly tendered pursuant to such Change of this IndentureControl Offer will be accepted for payment by the Issuer;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on and the date specified in such noticepurchase date, which date shall will be no earlier than 30 days and no nor later than 60 days from the date such notice is mailed, other than except in the case of a conditional Change of Control Offer made in advance of a Change of Control as may be required by law described in clause (viii) below (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;
(iv) that any Security Note not properly tendered or accepted for payment shall will remain outstanding and continue to accrue interest;
(viv) that Securities unless the Issuer default in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrue interest after interest, on the Change of Control Payment Date;
(viv) that Holders electing to have a Security any Notes purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall will be required to surrender their Securitiessuch Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly Notes completed, or transfer the relevant Security by book-entry transfer, to the paying agent Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(viiivi) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives, not later than the close of business on the second Business Day prior to the expiration date of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(vii) that Holders whose Securities Notes are being purchased only in part shall will be issued new Securities Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Securities surrendered Notes surrendered. The unpurchased portion of the Notes must be equal to at least $2,000 or any integral multiple of $1,000 in excess of $2,000;
(viii) if such notice is delivered prior to the consummation of a Change of Control, stating that the Change of Control Offer is conditioned on the Change of Control Triggering Event occurring on or transferred by book-entry transfer)prior to the Change of Control Payment Date; and
(ix) the CUSIP numberother instructions, as determined by the Issuer, consistent with this Section 3.04, that a Holder must follow. The Paying Agent will promptly deliver to each Holder of the Notes tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any, printed on the Securities being repurchased and ; provided that no representation is made as to the correctness each such new Note will be in a principal amount of $2,000 or accuracy an integral multiple of the CUSIP number, if any, listed $1,000 in such notice or printed on the Securitiesexcess thereof. The Issuer shall will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. If the Change of Control Payment Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid on the relevant interest payment date to the Person in whose name a Note is registered at the close of business on such record date.
(b) On the Change of Control Payment Date, the Issuer will, to the extent permitted by law,
(i) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer,
(ii) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and
(iii) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
(c) The Issuer will not be required to make a Change of Control Offer following a Change of Control if (i) a third party makes such an offer the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements for such an offer set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and such third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offersuch Change of Control Offer or (ii) a notice of redemption of all outstanding Notes has been given pursuant to this Indenture as described under Section 5.07, unless and until there is a default in the payment of the redemption price on the applicable Redemption Date or the redemption is not consummated due to the failure of a condition precedent contained in the applicable redemption notice to be satisfied. In addition, the Issuer will not repurchase any Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture, other than a Default in the payment of the Change of Control Payment upon a Change of Control Triggering Event. Notwithstanding anything to the contrary in this Section 3.04, a Change of Control Offer may be made in advance of the consummation of a Change of Control, conditional upon the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
(d) The Issuer shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder applicable to the extent such laws and regulations are applicable in connection with the repurchase of Securities the Notes pursuant to a Change of Control Offerthis Section 3.04. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions of this Section 1009Indenture, the Issuer shall will comply with the applicable those securities laws and regulations and shall will not be deemed not to have breached its obligations under the Change of Control Offer provisions of this Indenture by virtue thereofof any such conflict.
Appears in 1 contract
Samples: Indenture (Yum Brands Inc)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of (a) Unless the Company has previously or concurrently sent a redemption notice with respect to all existing Notes as described in Section 3.07 and all conditions precedent applicable to such redemption notice have been satisfied, within 30 days following any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by or, at the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for option of the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Company, prior to any Change of Control Triggering Event, unless but after public announcement of the Issuer has previously exercised its right to redeem transaction or transactions that constitute or may constitute the Securities in accordance with their respective terms, each Holder of Securities of such series will have the right to require the Issuer to purchase all or a portion of such Holder’s Securities pursuant to the offer described below (the “Change of Control Offer”)Triggering Event, the Company shall be required to commence an Offer to Purchase for all Notes then outstanding at a purchase price in cash equal to 101% of the principal amount thereof of the Notes, plus accrued and unpaid interest, if any, to the date of purchase, subject to the rights of Holders of the Securities on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following The Offer to Purchase will, if sent prior to the date upon on which the Change of Control Triggering Event occurredoccurs, or at the Issuer’s option, prior to any Change of Control, but after the public announcement of the pending Change of Control, the Issuer shall send, by first class mail, a notice to each Holder of Securities of such series, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute or may constitute the Change of Control Triggering Event, and shall state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, the purchase price and, that on the date specified in such notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, other than as may be required by law (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer to Purchase is conditioned on the Change of Control being consummated Triggering Event occurring on or prior to the Change of Control applicable Payment Date;.
(ivb) Subject to Section 4.13(c), the provisions described above that any Security not tendered or accepted for payment shall continue require the Company to accrue interest;
(v) that Securities accepted for payment pursuant make an Offer to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi) that Holders electing to have a Security purchased pursuant to Purchase following a Change of Control Offer may elect to have all, or Triggering Event will be applicable regardless of whether any portion other provisions of such Security, purchased;this Indenture are applicable.
(viic) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior to the Change of Control Payment Date;
(viii) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ix) the CUSIP number, if any, printed on the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall Company will not be required to make an Offer to Purchase upon a Change of Control Offer Triggering Event if a third party makes such an offer the Offer to Purchase in the manner, at the times and otherwise in compliance with the requirements for such set forth in this Indenture applicable to an offer Offer to Purchase made by the Issuer Company and such third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offer. such Offer to Purchase.
(d) If Holders of not less than 90.0% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer to Purchase and the Company, or any third party making an Offer to Purchase in lieu of the Company as described above, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer to Purchase described above, to redeem all Notes that remain outstanding following such purchase at a redemption price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to, but not including, such purchase date.
(e) The Issuer shall comply Company will comply, to the extent applicable, with the requirements of Rule 14e-1 under Section 14(e) of the Exchange Act and any other securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to Notes as a result of a Change of Control OfferTriggering Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 10094.13, the Issuer shall Company will comply with the applicable securities laws and regulations and shall will not be deemed not to have breached its obligations under this Indenture Section 4.13 by virtue thereofof its compliance with such securities laws or regulations.
(f) If the terms of any Credit Facility prohibit the Company from making an Offer to Purchase or from purchasing the Notes pursuant thereto, prior to the sending of the notice to Holders, but in any event within 30 days following any Change of Control Triggering Event, the Company covenants to:
(1) repay in full all Indebtedness outstanding under such Credit Facilities or offer to repay in full all such Indebtedness and repay the Indebtedness of each lender who has accepted such offer; or
(2) obtain the requisite consent under such Credit Facilities to permit the purchase of the Notes as described above.
(g) The Company must first comply with clause (f) of this Section 4.13before it will be required to purchase Notes in the event of a Change of Control Triggering Event; provided, however, that the Company’s failure to comply with clause (f) of this Section 4.13 or to make a Change of Control Offer to Purchase because of any such failure shall constitute a Default described in clause (4) in Section 6.01 (and not under clause (3) in Section 6.01 hereof); provided further, if the Company has instituted any liability management procedures or is otherwise engaged in obtaining the requisite consents under such Credit Facilities to permit the purchase of the Notes (such engagement to be determined by the Company in its sole discretion), the Company shall have an additional 30 days following the initial 30-day period after the occurrence of a Change of Control Triggering Event to secure such consents and no Default shall have occurred if such consents are obtained within such 30-day period.
Appears in 1 contract
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such series) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has previously Issuers have exercised its their right to redeem the Securities in accordance with their respective termsall outstanding Notes of a series pursuant to Section 3.07, each Holder Holders of Securities Notes of such series will have the right to require the Issuer Issuers to purchase all or a portion (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Securities Notes pursuant to the offer described below (the “Change of Control Offer”), at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to to, but excluding, the date of purchasepurchase (the “Change of Control Payment”), subject to the rights of Holders of the Securities on the relevant Record Date record date to receive interest due on the relevant Interest Payment Date. Within 30 days following the date upon which the Change of Control Triggering Event occurred, or or, at the Issuer’s Issuers’ option, prior to and conditioned on the occurrence of, the any Change of Control, but after the public announcement of the pending transaction that constitutes or may constitute the Change of Control, the Issuer shall send, by first class mail, Issuers will deliver a notice to each Holder of Securities of such seriesHolder, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe the transaction or transactions that constitute the Change of Control and shall will state:
(i) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture;
(ii) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, among other things, the purchase price and, that on the date specified in such noticedate, which date shall must be no earlier than 30 days and no nor later than 60 days from the date such notice is mailedsent and, if the notice is sent prior to the Change of Control, no earlier than the date of the occurrence of the Change of Control, other than as may be required by law (the “Change of Control Payment Date”). The notice will, the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed sent prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated Triggering Event occurring on or prior to the Change of Control Payment Date;
(iv) that any Security not tendered or accepted for payment shall continue to accrue interest;
(v) that Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities purchased pursuant to a Change of Control Offer shall be required to surrender their Securities, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly completed, or transfer the relevant Security by book-entry transfer, to the paying agent at the address specified in the notice prior to the Change of Control Payment Date;
(viii) that Holders whose Securities are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered (or transferred by book-entry transfer); and
(ix) the CUSIP number, if any, printed on the Securities being repurchased and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities. The Issuer shall not be required to make a Change of Control Offer if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer and such third party purchases all corresponding Securities of such series properly tendered and not withdrawn under its offer. The Issuer shall Issuers must comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with the repurchase purchase of Securities the Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 10094.09, the Issuer shall Issuers will comply with the applicable those securities laws and regulations and shall will not be deemed not to have breached its their obligations under this Indenture Section 4.09 by virtue of such conflicts. Holders of Definitive Notes electing to have a note purchased pursuant to a Change of Control Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the paying agent at the address specified in the notice. Holders of Global Notes must transfer their Notes to the Paying Agent by book-entry transfer pursuant to the Applicable Procedures of the Paying Agent and DTC (in the case of Global Notes), in each case prior to the Close of Business on the third Business Day prior to the Change of Control Payment Date. On the Change of Control Payment Date, the Company shall, to the extent lawful, to:
(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased. The Paying Agent will promptly pay to each Holder of Notes of each applicable series properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate (or cause to be transferred by book-entry) a new Note of such series equal in principal amount to any unpurchased portion of any Notes of such series surrendered; provided that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Notwithstanding anything to the contrary in this Section 4.09, the Issuers will not be required to make a Change of Control Offer if a third party makes such an offer in the manner and at the times required and otherwise in compliance with the requirements applicable to such an offer had it been made by the Issuers, and such third party purchases all Notes properly tendered and not withdrawn under its offer. In addition, the Issuers may not repurchase any Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default hereunder, other than a Default in the payment of the Change of Control Payment upon a Change of Control Triggering Event.
Appears in 1 contract
Samples: Indenture (Broadcom LTD)
Offer to Purchase Upon Change of Control Triggering Event. Any Securities of any series that require that the Issuer make an offer to purchase upon a Change of Control Triggering Event shall be purchased by the Issuer in accordance with their terms and (except as otherwise established as contemplated by Section 301 for the Securities of such seriesa) in accordance with this Section 1009. Upon the occurrence of a Change of Control Triggering Event, unless the Issuer has previously exercised its right to redeem the Securities in accordance with their respective terms, each Holder of Securities of such series will have the right to require the Issuer to purchase all or shall make an offer (a portion of such Holder’s Securities pursuant to the offer described below (the “Change of Control Offer”), ) to each Holder to repurchase all or any part (equal to US$200,000 or an integral multiple of US$1,000 in excess of US$200,000) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interestinterest on the Notes purchased, if any, to (but excluding) the date of purchase, purchase (subject to the rights right of Holders holders of the Securities record on the relevant Record Date record date to receive interest due on the relevant Interest Payment Dateinterest payment date), except to the extent the Issuer has previously or concurrently elected to redeem the Notes in full as described in Section 3.07 or Section 3.10 (the “Change of Control Payment”). Within 30 ten (10) days following the date upon which the any Change of Control Triggering Event occurred, or at the Issuer’s option, prior to any Change of Control, but after the public announcement of the pending Change of ControlEvent, the Issuer shall send, by first class mail, mail a notice to each Holder of Securities of such series, (with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. Such notice shall describe ) describing the transaction or transactions that constitute the Change of Control Triggering Event and shall statestating:
(i1) that the Change of Control Offer is being made pursuant to this Section 1009 of this Indenture4.08 and that all Notes tendered shall be accepted for payment;
(ii2) that the Issuer is required to offer to purchase all of the outstanding principal amount of Securities, price and the purchase price and, that on the date specified in such noticedate, which date shall be no earlier than 30 10 days and no later than 60 days from the date such notice is mailed, other than as may be required by law mailed (the “Change of Control Payment Date”), the Issuer shall repurchase the Securities validly tendered and not withdrawn pursuant to this Section 1009;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date;
(iv3) that any Security Note not tendered or accepted for payment shall continue to accrue interest;
(v4) that Securities that, unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after on the Change of Control Payment Date;
(vi5) that Holders electing to have a Security purchased pursuant to a Change of Control Offer may elect to have all, or any portion of such Security, purchased;
(vii) that Holders of Securities of such series electing to have Securities Notes purchased pursuant to a Change of Control Offer shall be required to surrender their Securitiesthe Notes, with the form entitled “Option of Holder to Elect Purchase” on attached to the reverse of the relevant Security, or such other customary documents of surrender and transfer as the Issuer may reasonably request, duly Notes completed, or transfer the relevant Security by book-entry transfer, to the paying agent Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(viii6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Hxxxxx is withdrawing his election to have the Notes purchased; and
(7) that Holders whose Securities Notes are being purchased only in part shall be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities surrendered Notes surrendered, which unpurchased portion must be equal to US$200,000 or in integral multiples of US$1,000 in excess of US$200,000. To the extent that the provisions of any applicable securities laws or regulations conflict with the provisions of this Section 4.08, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.08 by virtue of such compliance.
(b) On the Change of Control Payment Date, the Issuer shall, to the extent lawful:
(1) accept for payment all Notes or transferred by book-entry transfer)portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and
(ix3) deliver or cause to be delivered to the CUSIP numberTrustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuer and directing the Trustee, in writing, to cancel such Notes. The Paying Agent shall promptly deliver to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note shall be in a principal amount of US$200,000 or in integral multiples of US$1,000 in excess of US$200,000. The Issuer shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(c) A Change of Control Offer may be made in advance of a Change of Control Triggering Event, printed on and conditioned upon such Change of Control Triggering Event, if a definitive agreement is in place for the Securities being repurchased Change of Control at the time of making of the Change of Control Offer.
(d) If holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making such an offer in lieu of the Issuer, purchases all of the Notes properly tendered and not withdrawn by such holders, the Issuer or such third party shall have the right, upon not less than 10 days’ nor more than 60 days’ prior notice, provided that no representation such notice is made as given not more than 30 days following such repurchase pursuant to the correctness or accuracy Change of the CUSIP numberControl Offer, if any, listed to redeem all Notes that remain outstanding following such purchase on a date specified in such notice or printed (the “Second Change of Control Payment Date”) and at a price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest on the Securities. The Notes repurchased to, but excluding, the Second Change of Control Payment Date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date).
(e) Notwithstanding anything to the contrary in this Section 4.08, the Issuer shall not be required to make a Change of Control Offer upon a Change of Control Triggering Event if (1) a third party makes such an offer the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Issuer set forth in this Section 4.08 and such third party purchases all corresponding Securities of such series properly Notes validly tendered and not withdrawn under its offer. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To Offer or (2) a notice of redemption has previously or concurrently been given pursuant to Section 3.07 or 3.10 hereof, pursuant to which the extent that any securities laws or regulations conflict with Company has exercised its right to redeem the provisions Notes in full, unless and until there is a default in payment of this Section 1009, the Issuer shall comply with the applicable securities laws and regulations and shall be deemed not to have breached its obligations under this Indenture by virtue thereofredemption price.
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