Offer to Repurchase. (a) Within 30 days following consummation of a Senior Note Equity Contribution Offer, the Company shall, subject to the provisions of the next paragraph, make an offer (a “Repurchase Offer”) to each holder to repurchase Notes, and shall concurrently make an offer to the holders of 2012Notes to repurchase 2012 Notes, in an aggregate principal amount of up to the lesser of (i) the amount equal to the Asahi Equity Offering Net Proceeds from such Asahi Equity Offerings less the amount applied as set forth in the first paragraph of Section 3.10(b) and (ii) the Equity Offering Cap (such lesser amount herein the “Equity Offer Amount”), at a purchase price equal to 100% of the aggregate principal amount thereof plus accrued and unpaid interest on the Notes and 2012 Notes, as the case may be, repurchased to the date of purchase; provided, however, that the Company shall have no obligation to make a Repurchase Offer if such amount shall not be greater than zero. Asahi shall contribute to the Company as equity capital the amount equal to the Equity Offer Amount (except to the extent such amount has been previously contributed pursuant to the Credit Facilities or the 2003 Indenture). (b) Notwithstanding the foregoing, the Company will not be required to comply with the provisions described in Section 3.10(a) with respect to any such Asahi Equity Offering Net Proceeds that are used to (i) repay the principal amount of any Indebtedness under the Credit Facilities consisting of term loans or (ii) repay the principal amount of any 2013 Notes purchased in a Senior Note Equity Contribution Offer. In addition, the Company will not be required to make a Repurchase Offer if the Asahi Equity Offering Net Proceeds of any such Asahi Equity Offering (after application in accordance with the preceding sentence) are less than $2.0 million (any such proceeds with respect to an Asahi Equity Offering, the “Deminimus Asahi Proceeds”), provided that when the aggregate amount of any Deminimus Asahi Proceeds that have not been used to make a Repurchase Offer exceeds $10.0 million, the Company will make a Repurchase Offer in accordance with Section 3.10(a). The Company may make a Repurchase Offer concurrently with a Senior Note Equity Contribution Offer, in which case the Company shall not have any obligation to purchase Notes or 2012 Notes unless and until any funds remain after it applies such funds to the payment of the principal amount of any 2013 Notes tendered in such Senior Note Equity Contribution Offer. In the event the Company makes a Repurchase Offer concurrently with a Senior Note Equity Contribution Offer, it will not have an obligation to make a further Repurchase Offer in respect of such Asahi Equity Offering Net Proceeds. (c) If the aggregate principal amount of Notes and 2012 Notes tendered into a Repurchase Offer exceeds the Equity Offer Amount less the amount applied to the repurchase of 2013 Notes tendered into a Repurchase Offer, the Company shall determine an aggregate amount of Notes and 2012 Notes to be purchased pro rata based on the respective total amounts of Notes and 2012 Notes surrendered and shall select the Notes and 2012 Notes to be purchased on a pro rata basis within each such group (with such adjustments as may be deemed appropriate by the Company so that only Notes and 2012 Notes in denominations of $1,000, or integral multiples thereof, will be purchased). (d) Any Repurchase Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Repurchase Offer Period”). No later than three Business Days after the termination of the Repurchase Offer Period (the “Repurchase Date”), the Company will, subject to the terms and conditions set forth herein, purchase the Notes in response to the Repurchase Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made. (1) that the Repurchase Offer is being made pursuant to this Section 3.10 and the length of time the Repurchase Offer will remain open; (2) the Equity Offer Amount, the purchase price and the Repurchase Date; (3) if such Repurchase Offer is being made concurrently with a Senior Note Equity Contribution Offer, that the Company will first purchase 2013 Notes pursuant to the 2003 Indenture and shall purchase Notes and 2012 Notes only if and to the extent the aggregate principal amount of 2013 Notes tendered is less than the Equity Offer Amount, (4) that any Note not tendered or accepted for payment will continue to accrue interest; (5) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Repurchase Offer will cease to accrue interest after the Repurchase Date; (6) that Holders electing to have a Note purchased pursuant to a Repurchase Offer may elect to have Notes purchased in integral multiples of $1,000 only; (7) that Holders electing to have a Note purchased pursuant to any Repurchase 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, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Repurchase Date; (8) that Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Repurchase Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (9) that, if the aggregate principal amount of Notes and 2012 surrendered by holders exceeds the Equity Offer Amount (less the amount applied to the repurchase of 2013 Notes if a Senior Note Equity Contribution Offer is made concurrently with such Repurchase Offer), the Company will determine an aggregate amount of Notes and 2012 Notes to be purchased pro rata based on the respective total amounts of Notes and 2012 Notes surrendered and shall select the Notes and 2012 Notes to be purchased on a pro rata basis within each such group (with such adjustments as may be deemed appropriate by the Company so that only Notes and 2012 Notes in denominations of $1,000, or integral multiples thereof, will be purchased); and (10) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). The 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 those laws and regulations are applicable in connection with the repurchase of the Notes as a result of the Repurchase Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 3.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 3.10 by virtue of such conflict. Other than as specifically provided in this Section 3.10, any purchase pursuant to this Section 3.10 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof. 3. If the DCX Notes Requisite Consents are obtained and the DCX Notes Proposed Amendments are effected, the following provisions of Article Four (“Covenants”) will be amended as follows by deleting the language that is crossed out and inserting the language that is underlined.
Appears in 1 contract
Offer to Repurchase. (a) Within 15 days after the Acquisition Date, the Company shall, subject to the terms hereof, make an offer (a “Post-Merger Offer”) to each Holder to repurchase Notes in an aggregate principal amount of up to $25 million (the “Post-Merger Offer Amount”) at a purchase price equal to 100% of the aggregate principal amount thereof plus accrued and unpaid interest on the Notes repurchased to the date of purchase.
(b) Within 30 days following consummation of a Senior Note an Asahi Equity Contribution OfferOffering, the Company shall, subject to the provisions of the next paragraph, make an offer (an “Equity Contribution Offer,” and together with the Post-Merger Offer, a “Repurchase Offer”) to each holder Holder to repurchase Notes, and shall concurrently make an offer to the holders of 2012Notes to repurchase 2012 Notes, Notes in an aggregate principal amount of up to the lesser of (i) the amount equal to the Asahi Equity Offering Net Proceeds from such Asahi Equity Offerings less the amount applied as set forth in the first paragraph sentence of Section 3.10(b3.10(c) and (ii) the Equity Offering Cap (such lesser amount herein the “Equity Offer Amount”), at a purchase price equal to 100% of the aggregate principal amount thereof plus accrued and unpaid interest on the Notes and 2012 Notes, as the case may be, repurchased to the date of purchase; provided, however, that the Company shall have no obligation to make a Repurchase an Equity Contribution Offer if such amount shall not be greater than zero. Asahi shall contribute to the Company as equity capital the amount equal to the Equity Offer Amount (except to the extent such amount has been previously contributed pursuant to the Credit Facilities or the 2003 IndentureFacilities).
(bc) Notwithstanding the foregoing, the Company will not be required to comply with the provisions described in Section 3.10(a3.10(b) with respect to any such Asahi Equity Offering Net Proceeds that are used to (i) repay the principal amount of any Indebtedness under the Credit Facilities consisting of term loans or (ii) repay the principal amount of any 2013 Notes purchased in a Senior Note Equity Contribution Offerloans. In addition, the Company will not be required to make a Repurchase an Equity Contribution Offer if the Asahi Equity Offering Net Proceeds of any such Asahi Equity Offering (after application in accordance with the preceding sentence) are less than $2.0 million (any such proceeds with respect to an Asahi Equity Offering, the “Deminimus Asahi Proceeds”), provided that when the aggregate amount of any Deminimus Asahi Proceeds that have not been used to make a Repurchase an Equity Contribution Offer exceeds $10.0 million, the Company will make a Repurchase an Equity Contribution Offer in accordance with Section 3.10(a3.10(b). .
(d) The Company may make a Repurchase Offer may, concurrently with a Senior Note any Equity Contribution Offer, in which case make a concurrent offer to purchase Subordinated Notes and DCX Notes provided that the Company shall not have purchase all Notes tendered (in a principal amount up to the Equity Offer Amount) prior to purchasing any obligation to purchase Subordinated Notes or 2012 Notes unless and until any funds remain after it applies such funds to the payment of the principal amount of any 2013 Notes tendered in such Senior Note Equity Contribution Offer. In the event the Company makes a Repurchase Offer concurrently with a Senior Note Equity Contribution Offer, it will not have an obligation to make a further Repurchase Offer in respect of such Asahi Equity Offering Net ProceedsDCX Notes.
(ce) If the aggregate principal amount of Notes and 2012 Notes tendered into a Repurchase the Post-Merger Offer or any Equity Contribution Offer, respectively, exceeds the Post Merger Amount or the Equity Offer Amount less the amount applied to the repurchase of 2013 Notes tendered into a Repurchase OfferAmount, the Company shall determine an aggregate amount of Notes and 2012 Notes to be purchased pro rata based on the respective total amounts of Notes and 2012 Notes surrendered and shall select the Notes and 2012 Notes to be purchased on a pro rata basis within each such group (with such adjustments as may be deemed appropriate by the Company so that only Notes and 2012 Notes in denominations of $1,000, or integral multiples thereof, will be purchased)basis.
(df) Any Repurchase Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law or, in the case of the Post-Merger Offer, as permitted by the next sentence (the “Repurchase Offer Period”). If in connection with the Post-Merger Offer the Company is unable to borrow term loans under the Credit Agreements in an amount not in excess of the principal amount of Notes tendered in the Post-Merger Offer due to an inability to satisfy the conditions thereto, the closing date of the Post-Merger Offer may be postponed until such time as such conditions are satisfied or waived and the Company can borrow such loans or can otherwise consummate such purchase, but in any event for not more than 180 days. No later than three Business Days after the termination of the Repurchase Offer Period (the “Repurchase Date”), the Company will, subject to the terms and conditions set forth herein, purchase the Notes or, if less than the Post-Merger Offer Amount or the Equity Offer Amount, as the case may be, has been tendered, all Notes in response to the Repurchase Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.
(1) that the Repurchase Offer is being made pursuant to this Section 3.10 and the length of time the Repurchase Offer will remain open;
(2) the Post-Merger Amount or the Equity Offer Amount, as the case may be, the purchase price and the Repurchase Date;
(3) if such Repurchase Offer is being made concurrently with a Senior Note Equity Contribution Offer, that the Company will first purchase 2013 Notes pursuant to the 2003 Indenture and shall purchase Notes and 2012 Notes only if and to the extent the aggregate principal amount of 2013 Notes tendered is less than the Equity Offer Amount,
(4) that any Note not tendered or accepted for payment will continue to accrue interest;
(54) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Repurchase Offer will cease to accrue interest after the Repurchase Date;
(65) that Holders electing to have a Note purchased pursuant to a Repurchase Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(76) that Holders electing to have a Note purchased pursuant to any Repurchase 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, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Repurchase Date;
(8) 7) that Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Repurchase Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(9) 8) that, if the aggregate principal amount of Notes and 2012 surrendered by holders Holders exceeds the Post-Merger Offer Amount or the Equity Offer Amount (less Amount, as the amount applied to the repurchase of 2013 Notes if a Senior Note Equity Contribution Offer is made concurrently with such Repurchase Offer)case may be, the Company will determine an aggregate amount of Notes and 2012 Notes to be purchased pro rata based on the respective total amounts of Notes and 2012 Notes surrendered and shall select the Notes and 2012 Notes to be purchased on a pro rata basis within each such group based on the principal amount of Notes surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes and 2012 Notes in denominations of $1,000, or integral multiples thereof, will be purchased); and
(109) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). The 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 those laws and regulations are applicable in connection with the repurchase of the Notes as a result of the Repurchase Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 3.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 3.10 by virtue of such conflict. Other than as specifically provided in this Section 3.10, any purchase pursuant to this Section 3.10 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
3. If the DCX Senior Notes Requisite Consents are obtained and the DCX Senior Notes Proposed Amendments are effected, the following provisions of Article Four (“Covenants”) will be amended as follows by deleting the language that is crossed out and inserting the language that is underlined.
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Offer to Repurchase. (ai) Within 30 days following consummation Upon the occurrence of a Senior Note Equity Contribution OfferChange of Control, the Company shall, subject to the provisions of the next paragraph, will make an offer (a “Repurchase Offer”"CHANGE OF CONTROL OFFER") to each holder Holder to repurchase Notes, and shall concurrently make an offer to the holders of 2012Notes to repurchase 2012 Notes, in an aggregate principal amount of up to the lesser of all or any part (i) the amount equal to the Asahi Equity Offering Net Proceeds from such Asahi Equity Offerings less the amount applied as set forth in the first paragraph U.S.$1,000 or an integral multiple of Section 3.10(bU.S.$1,000) and (ii) the Equity Offering Cap (such lesser amount herein the “Equity Offer Amount”), of each Holder's Notes at a purchase price equal to 100101% of the aggregate principal amount thereof plus accrued and unpaid interest interest, if any, on the Notes and 2012 Notes, as the case may be, repurchased to the date of purchase; provided, however, that purchase (the Company shall have no obligation to make a Repurchase Offer if such amount shall not be greater than zero"CHANGE OF CONTROL PAYMENT"). Asahi shall contribute to the Company as equity capital the amount equal to the Equity Offer Amount (except to the extent such amount has been previously contributed pursuant to the Credit Facilities or the 2003 Indenture).
(b) Notwithstanding the foregoingWithin 30 days following any Change of Control, the Company will not be mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required to comply with by the provisions described in Section 3.10(a) with respect to any such Asahi Equity Offering Net Proceeds that are used to (i) repay the principal amount of any Indebtedness under the Credit Facilities consisting of term loans or Indenture.
(ii) repay the principal amount of any 2013 Notes purchased in a Senior Note Equity Contribution Offer. In addition, If the Company will not be required to make or a Repurchase Offer if the Asahi Equity Offering Net Proceeds of Subsidiary consummates any such Asahi Equity Offering (after application in accordance with the preceding sentence) are less than $2.0 million (any such proceeds with respect to an Asahi Equity OfferingAsset Sales, the “Deminimus Asahi Proceeds”), provided that when and the aggregate amount of any Deminimus Asahi Excess Proceeds that have not been used to make a Repurchase Offer exceeds $10.0 U.S.$10.0 million, the Company will make a Repurchase Offer an offer (an "ASSET SALE OFFER") to all Holders of Notes and all holders of other Indebtedness that is PARI PASSU with the Notes containing provisions similar to those set forth in accordance the Indenture with Section 3.10(a). The Company may make a Repurchase Offer concurrently with a Senior Note Equity Contribution Offer, in which case the Company shall not have any obligation respect to offers to purchase or redeem with the proceeds of sales of assets pursuant to Section 3.02 of the Supplemental Indenture to purchase the maximum principal amount of Notes or 2012 Notes unless and until any funds remain after it applies such funds other PARI PASSU Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to the payment 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of any 2013 purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes and other PARI PASSU Indebtedness tendered in such Senior Note Equity Contribution Offer. In pursuant to an Asset Sale Offer is less than the event Excess Proceeds, the Company makes a Repurchase Offer concurrently with a Senior Note Equity Contribution Offer, it will (or such Subsidiary) may use such deficiency for any purpose not have an obligation to make a further Repurchase Offer in respect of such Asahi Equity Offering Net Proceeds.
(c) otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and 2012 Notes tendered into a Repurchase Offer other PARI PASSU Indebtedness surrendered by holders thereof exceeds the Equity Offer Amount less the amount applied to the repurchase of 2013 Notes tendered into a Repurchase OfferExcess Proceeds, the Company shall determine an aggregate amount of Notes and 2012 Notes to be purchased pro rata based on the respective total amounts of Notes and 2012 Notes surrendered and Trustee shall select the Notes and 2012 Notes other PARI PASSU Indebtedness to be purchased on a pro rata basis within each such group (with such adjustments as may be deemed appropriate by PRO RATA basis. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company so that only Notes prior to any related purchase date and 2012 Notes in denominations of $1,000, or integral multiples thereof, will be purchased).
(d) Any Repurchase Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Repurchase Offer Period”). No later than three Business Days after the termination of the Repurchase Offer Period (the “Repurchase Date”), the Company will, subject to the terms and conditions set forth herein, purchase the Notes in response to the Repurchase Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.
(1) that the Repurchase Offer is being made pursuant to this Section 3.10 and the length of time the Repurchase Offer will remain open;
(2) the Equity Offer Amount, the purchase price and the Repurchase Date;
(3) if such Repurchase Offer is being made concurrently with a Senior Note Equity Contribution Offer, that the Company will first purchase 2013 Notes pursuant to the 2003 Indenture and shall purchase Notes and 2012 Notes only if and to the extent the aggregate principal amount of 2013 Notes tendered is less than the Equity Offer Amount,
(4) that any Note not tendered or accepted for payment will continue to accrue interest;
(5) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Repurchase Offer will cease to accrue interest after the Repurchase Date;
(6) that Holders electing to have a Note purchased pursuant to a Repurchase Offer may elect to have such Notes purchased in integral multiples of $1,000 only;
(7) that Holders electing to have a Note purchased pursuant to any Repurchase Offer will be required to surrender the Note, with by completing the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Repurchase Date;
(8) that Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Repurchase Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(9) that, if the aggregate principal amount of Notes and 2012 surrendered by holders exceeds the Equity Offer Amount (less the amount applied to the repurchase of 2013 Notes if a Senior Note Equity Contribution Offer is made concurrently with such Repurchase Offer), the Company will determine an aggregate amount of Notes and 2012 Notes to be purchased pro rata based on the respective total amounts of Notes and 2012 Notes surrendered and shall select the Notes and 2012 Notes to be purchased on a pro rata basis within each such group (with such adjustments as may be deemed appropriate by the Company so that only Notes and 2012 Notes in denominations of $1,000, or integral multiples thereof, will be purchased); and
(10) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). The 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 those laws and regulations are applicable in connection with the repurchase of the Notes as a result of the Repurchase Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 3.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 3.10 by virtue of such conflict. Other than as specifically provided in this Section 3.10, any purchase pursuant to this Section 3.10 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereofNotes.
3. If the DCX Notes Requisite Consents are obtained and the DCX Notes Proposed Amendments are effected, the following provisions of Article Four (“Covenants”) will be amended as follows by deleting the language that is crossed out and inserting the language that is underlined.
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Samples: First Supplemental Indenture (Paramount Resources LTD)
Offer to Repurchase. (a) Within 30 days following consummation of a Senior Note Equity Contribution Offer, the Company shall, subject to the provisions of the next paragraph, make an offer (a “Repurchase Offer”) to each holder to repurchase Notes, and shall concurrently make an offer to the holders of 2012Notes DCX Notes to repurchase 2012 DCX Notes, in an aggregate principal amount of up to the lesser of (i) the amount equal to the Asahi Equity Offering Net Proceeds from such Asahi Equity Offerings less the amount applied as set forth in the first paragraph of Section 3.10(b) and (ii) the Equity Offering Cap (such lesser amount herein the “Equity Offer Amount”), at a purchase price equal to 100% of the aggregate principal amount thereof plus accrued and unpaid interest on the Notes and 2012 DCX Notes, as the case may be, repurchased to the date of purchase; provided, however, that the Company shall have no obligation to make a Repurchase Offer if such amount shall not be greater than zero. Asahi shall contribute to the Company as equity capital the amount equal to the Equity Offer Amount (except to the extent such amount has been previously contributed pursuant to the Credit Facilities or the 2003 Senior Note Indenture).
(b) Notwithstanding the foregoing, the Company will not be required to comply with the provisions described in Section 3.10(a) with respect to any such Asahi Equity Offering Net Proceeds that are used to (i) repay the principal amount of any Indebtedness under the Credit Facilities consisting of term loans or (ii) repay the principal amount of any 2013 Senior Notes purchased in a Senior Note Equity Contribution Offer. In addition, the Company will not be required to make a Repurchase Offer if the Asahi Equity Offering Net Proceeds of any such Asahi Equity Offering (after application in accordance with the preceding sentence) are less than $2.0 million (any such proceeds with respect to an Asahi Equity Offering, the “Deminimus Asahi Proceeds”), provided that when the aggregate amount of any Deminimus Asahi Proceeds that have not been used to make a Repurchase Offer exceeds $10.0 million, the Company will make a Repurchase Offer in accordance with Section 3.10(a). The Company may make a Repurchase Offer concurrently with a Senior Note Equity Contribution Offer, in which case the Company shall not have any obligation to purchase Notes or 2012 DCX Notes unless and until any funds remain after it applies such funds to the payment of the principal amount of any 2013 Senior Notes tendered in such Senior Note Equity Contribution Offer. In the event the Company makes a Repurchase Offer concurrently with a Senior Note Equity Contribution Offer, it will not have an obligation to make a further Repurchase Offer in respect of such Asahi Equity Offering Net Proceeds.
(c) If the aggregate principal amount of Notes and 2012 DCX Notes tendered into a Repurchase Offer exceeds the Equity Offer Amount less the amount applied to the repurchase of 2013 Senior Notes tendered into a Repurchase Offer, the Company shall determine an aggregate amount of Notes and 2012 DCX Notes to be purchased pro rata based on the respective total amounts of Notes and 2012 DCX Notes surrendered and shall select the Notes and 2012 DCX Notes to be purchased on a pro rata basis within each such group (with such adjustments as may be deemed appropriate by the Company so that only Notes and 2012 DCX Notes in denominations of $1,000, or integral multiples thereof, will be purchased).
(d) Any Repurchase Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Repurchase Offer Period”). No later than three Business Days after the termination of the Repurchase Offer Period (the “Repurchase Date”), the Company will, subject to the terms and conditions set forth herein, purchase the Notes in response to the Repurchase Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.
(1) that the Repurchase Offer is being made pursuant to this Section 3.10 and the length of time the Repurchase Offer will remain open;
(2) the Equity Offer Amount, the purchase price and the Repurchase Date;
(3) if such Repurchase Offer is being made concurrently with a Senior Note Equity Contribution Offer, that the Company will first purchase 2013 Senior Notes pursuant to the 2003 Senior Note Indenture and shall purchase Notes and 2012 DCX Notes only if and to the extent the aggregate principal amount of 2013 Senior Notes tendered is less than the Equity Offer Amount,
(4) that any Note not tendered or accepted for payment will continue to accrue interest;
(5) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Repurchase Offer will cease to accrue interest after the Repurchase Date;
(6) that Holders electing to have a Note purchased pursuant to a Repurchase Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(7) that Holders electing to have a Note purchased pursuant to any Repurchase 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, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Repurchase Date;
; (8) that Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Repurchase Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(9) that, if the aggregate principal amount of Notes and 2012 surrendered by holders exceeds the Equity Offer Amount (less the amount applied to the repurchase of 2013 Notes if a Senior Note Equity Contribution Offer is made concurrently with such Repurchase Offer), the Company will determine an aggregate amount of Notes and 2012 Notes to be purchased pro rata based on the respective total amounts of Notes and 2012 Notes surrendered and shall select the Notes and 2012 Notes to be purchased on a pro rata basis within each such group (with such adjustments as may be deemed appropriate by the Company so that only Notes and 2012 Notes in denominations of $1,000, or integral multiples thereof, will be purchased); and
(10) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). The 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 those laws and regulations are applicable in connection with the repurchase of the Notes as a result of the Repurchase Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 3.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 3.10 by virtue of such conflict. Other than as specifically provided in this Section 3.10, any purchase pursuant to this Section 3.10 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
3. If the DCX Notes Requisite Consents are obtained and the DCX Notes Proposed Amendments are effected, the following provisions of Article Four (“Covenants”) will be amended as follows by deleting the language that is crossed out and inserting the language that is underlined.
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