Repurchase at Option of Holders Upon a Designated Event. (a) If a Designated Event occurs at any time, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase all of such holder’s Notes or any portion thereof that is a multiple of $1,000 principal amount, for cash on the date (the “Designated Event Purchase Date”) specified by the Company that is not less than twenty (20) days and not more than thirty-five (35) calendar days after the date of the Designated Event Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest thereon to, but excluding, the Designated Event Purchase Date (unless the Designated Event Purchase Date is between a regular record date and the corresponding Interest Payment Date to which it relates, in which case, the Company will pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to the Noteholders of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental Change, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and (ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state: (A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary; (B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and (C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered. (b) On or before the tenth day after the Effective Date of any Designated Event, the Company shall provide to all holders of record of the Notes and the Trustee and Paying Agent a notice (the “Designated Event Company Notice”) of the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a newspaper of general circulation in The City of New York or publish the information on the Company’s website or through such other public medium as the Company may use at that time. Each Designated Event Company Notice shall specify: (i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change; (ii) the date of the Designated Event; (iii) the last date on which a holder may exercise the repurchase right; (iv) the Designated Event Purchase Date; (v) the Designated Event Purchase Price; (vi) the name and address of the Paying Agent and the Put Exercise Agent; (vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate; (viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c); (ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”); (x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and (xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.01. (c) A Designated Event Purchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Designated Event Company Notice at any time prior to the close of business on the Business Day prior to the Designated Event Purchase Date, specifying: (i) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, or if not certificated, such notice must comply with appropriate procedures of the Depositary; (ii) the principal amount of the Note with respect to which such notice of withdrawal is being submitted, and (iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; (d) On or prior to 11:00 a.m. (local time in The City of New York) on the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money sufficient to repurchase on the Designated Event Purchase Date all of the Notes to be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment of the Designated Event Purchase Price in Section 14.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price. (e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes).
Appears in 2 contracts
Samples: Indenture (Forest City Enterprises Inc), Indenture (Forest City Enterprises Inc)
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to the Maturity Date, then each Noteholder shall have the right, at such holderHolder’s option, to require the Company Issuer to repurchase all of such holderHolder’s Notes Notes, or any portion thereof that is a multiple of $1,000 principal amount, for cash in cash, on the a date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less Issuer, which may be no earlier than twenty fifteen (2015) days and not more no later than thirty-five thirty (3530) calendar days after the date of the Issuer Repurchase Notice related to such Designated Event Company Notice (as defined below) Event, at a repurchase price equal to 100% of the principal amount thereofof the Notes being repurchased, together with plus accrued and unpaid interest thereon to, but excluding, the Designated Event Purchase Date (unless Repurchase Date; provided, however, that if the Designated Event Purchase Repurchase Date is between falls after a regular record date Record Date and on or prior to the corresponding Interest Payment Date to which it relates, in which caseinterest payment date, the Company will Issuer shall pay the full amount of accrued and unpaid interest payable interest, if any, on such Interest Payment Date interest payment date to the Noteholders Holder of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental ChangeRecord Date, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or repurchase price will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion 100% of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth calendar day after the Effective Date occurrence of any a Designated Event, the Company Issuer shall provide give or cause to be given to all holders Holders of record on the date of the Notes Designated Event (and to beneficial owners as required by applicable law) an Issuer Repurchase Notice as set forth in Section 3.07 with respect to such Designated Event. The Issuer shall also deliver a copy of the Issuer Repurchase Notice to the Trustee and the Paying Agent at such time as it is given to Noteholders. In addition to the giving of such Issuer Repurchase Notice, the Issuer shall disseminate a notice (the “Designated Event Company Notice”) of press release through Dow Jxxxx & Company, Inc. or Bloomberg Business News announcing the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing or publish such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a The Wall Street Journal or another newspaper of general circulation in The City of New York or publish the information on the CompanyGuarantor’s website website, or through such other public medium as the Company may use Issuer shall deem appropriate at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company Issuer to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.013.05.
(c) A Designated Event Purchase Notice may For a Note to be withdrawn by means repurchased at the option of a written notice of withdrawal delivered the Holder pursuant to this Section 3.05(c), the Holder must deliver to the Paying Agent in accordance with the Designated Event Company Notice at any time Agent, prior to the close of business on the second Business Day immediately prior to the Designated Event Purchase Repurchase Date, specifying:
(i) a written notice of repurchase (the “Designated Event Repurchase Notice”) in the form set forth on the reverse of the Note duly completed specifying (A) (if certificated Notes have been issued, the Note is certificated) the certificate numbers number of the withdrawn NotesNote that the Holder will deliver to be repurchased or (if the Note is represented by a Global Note) that the relevant Designated Event Repurchase Notice complies with the appropriate Depositary procedures, or if not certificated, such notice must comply with appropriate procedures (B) the portion of the Depositary;
(ii) the principal amount of the Note with respect which the Holder will deliver to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Noticebe repurchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;1,000 (provided that the remaining principal amount of Notes not subject to repurchase must be in an authorized denomination) and (C) that such Note shall be repurchased as of the Designated Event Repurchase Date pursuant to the terms and conditions specified in the Note and in this Indenture; together with (ii) such Notes duly endorsed for transfer (if the Note if certificated) or book-entry transfer of such Note (if such Note is represented by a Global Note). The delivery of such Note to the Paying Agent with, or at any time after delivery of, the Designated Event Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent shall be a condition to the receipt by the Holder of the repurchase price therefore; provided, however, that such repurchase price shall be so paid pursuant to this Section 3.05 only if the Notes so delivered to the Paying Agent shall conform in all respects to the description thereof in the Designated Event Repurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Issuer, whose determination shall be final and binding absent manifest error, and the Trustee may rely and shall be fully protected in relying on such determination by the Issuer.
(d) On The Issuer, if so requested, shall repurchase from the Holder thereof, pursuant to this Section 3.05, a portion of a Note, if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of such portion of such Note.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Issuer pursuant to this Section 3.05 if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded or cured, on or prior to 11:00 a.m. the relevant Repurchase Date (local time except in The City the case of New York) on the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed an acceleration resulting from a default by the Company or if Issuer in the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in payment of the repurchase price pursuant to this Section 3.04) an amount of money sufficient 3.05 with respect to repurchase on the Designated Event Purchase Date all of the Notes to be repurchased on such date at repurchased).
(f) The Paying Agent shall promptly notify the Issuer of the receipt by it of any Designated Event Purchase PriceRepurchase Notice or written notice of withdrawal thereof. Subject to receipt of funds and/or Notes Any repurchase by the Trustee (or other Paying Agent appointed Issuer contemplated pursuant to the provisions of this Section 3.05 shall be consummated by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior delivery of the consideration to be received by the Designated Event Expiration Time will be made promptly after Holder on the later of (x) two (2) Business Days following the time of book-entry transfer or delivery of such Note to the Paying Agent by the Holder thereof in the manner required by this Section 3.05 and (y) the Designated Event Purchase Repurchase Date with respect to such Note (provided the holder Holder has satisfied the conditions to in this Section 3.05). Payment of the payment of repurchase price on the Designated Event Purchase Price in Section 14.01), Repurchase Date for a Note for which a Designated Event Repurchase Notice has been delivered and (y) the time of not withdrawn is conditioned upon book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes), together with necessary endorsements, to the Paying Agent prior to the close of business on the second Business Day prior to the Designated Event Repurchase Date.
Appears in 2 contracts
Samples: Indenture (Medical Properties Trust Inc), Indenture (Medical Properties Trust Inc)
Repurchase at Option of Holders Upon a Designated Event. (a) For purposes of the Exchangeable Debentures, Section 10.1(a) of the Indenture is hereby replaced and superceded by the following and the following shall apply to the Exchangeable Debentures:
(a) If there shall occur a Designated Event occurs at any timeprior to April 15, 2012, then each Noteholder Holder shall have the right, at such holderHolder’s option, to require the Company to repurchase all of such holderHolder’s Notes Exchangeable Debentures, or any portion thereof that is a multiple of $1,000 principal amount, for cash in cash, on the a date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less Company, which may be no earlier than twenty fifteen (2015) days and not more no later than thirty-five thirty (3530) calendar days after the date of the Issuer Repurchase Notice related to such Designated Event Company Notice (as defined below) Event, at a repurchase price equal to 100% of the principal amount thereofof the Exchangeable Debentures being repurchased, together with plus accrued and unpaid interest thereon (including Liquidated Damages, if any) to, but excluding, the Designated Event Purchase Date Repurchase Date. A “Designated Event” will be deemed to have occurred upon a Change in Control or a Termination of Trading.”
(unless b) For purposes of the Designated Event Purchase Date Exchangeable Debentures, Section 10.1(b) of the Indenture is between a regular record date hereby replaced and superceded by the following and the corresponding Interest Payment Date to which it relates, in which case, the Company will pay the full amount of accrued and unpaid interest payable on such Interest Payment Date following shall apply to the Noteholders of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental Change, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, uponExchangeable Debentures:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth thirtieth calendar day after the Effective Date occurrence of any a Designated Event, the Company shall provide mail or cause to be mailed to all holders Holders of record on the date of the Notes and Designated Event an Issuer Repurchase Notice as set forth in Section 5.03 of the Twenty-Third Supplemental Indenture with respect to such Designated Event. The Company shall also deliver a copy of the Issuer Repurchase Notice to the Trustee and the Paying Agent a notice (at such time as it is mailed to Holders. In addition to the “Designated Event Company Notice”) of the occurrence mailing of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing such noticeIssuer Repurchase Notice, the Company shall issue disseminate a press release containing this informationthrough Dow Xxxxx & Company, Inc. or Bloomberg Business News or a substantially equivalent financial news organization announcing the occurrence of the Designated Event and publish a notice containing this such information in a newspaper of general circulation in The City of New York York, or publish the information on the CompanyHost REIT’s website website, or through such other public medium as the Company may use shall deem appropriate at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the NoteholdersHolders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes Exchangeable Debentures pursuant to this Section 14.0110.1(b).”
(c) A Designated Event Purchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Designated Event Company Notice at any time prior to the close of business on the Business Day prior to the Designated Event Purchase Date, specifying:
(i) if certificated Notes have been issued, the certificate numbers For purposes of the withdrawn NotesExchangeable Debentures, or if not certificated, such notice must comply with appropriate procedures Section 10.1 of the Depositary;
(ii) Indenture is hereby supplemented by adding the principal amount of the Note with respect to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money sufficient to repurchase on the Designated Event Purchase Date all of the Notes to be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment of the Designated Event Purchase Price in Section 14.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes).following:
Appears in 2 contracts
Samples: Supplemental Indenture (Host Hotels & Resorts L.P.), Supplemental Indenture (Host Hotels & Resorts, Inc.)
Repurchase at Option of Holders Upon a Designated Event. (a) If a Designated Event occurs at any timetime prior to the Maturity Date, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase all of such holder’s Notes or any portion thereof that is a multiple of $1,000 principal amountamount (provided that the principal amount of any portion of such Note not purchased will be $2,000 or an integral multiple of $1,000 in excess thereof), for cash on the date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less than twenty (20) days and not more than thirty-thirty five (35) calendar days after the date of the Designated Event Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest thereon tothereon, if any, to but excluding, the Designated Event Purchase Repurchase Date (unless the Designated Event Purchase Repurchase Date is between a regular record date and the corresponding Interest Payment Date to which it relates, in which case, the Company will pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to the Noteholders of record at the close of business on the corresponding regular record dateDate) (the “Designated Event Purchase Repurchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental Change, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Repurchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the close of business on the Designated Event Purchase Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Repurchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Repurchase Price therefor; provided that such Designated Event Purchase Repurchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Repurchase Notice. The Designated Event Purchase Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof (provided that the principal amount of any portion of such Note not purchased will be $2,000 or an integral multiple of $1,000 in excess thereof), and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Repurchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Fundamental Change Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth 20th day after the Effective Date of any Designated Event, the Company shall provide to all holders of record of the Notes and the Trustee and Paying Agent a notice (the “Designated Event Company Notice”) of the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing such noticeDesignated Event Company Notice, the Company shall issue a press release containing this information, publish a notice containing this information in a newspaper of general circulation in The City of New York or publish the information included therein on the Company’s website or through such other public medium as the Company may use at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the Designated Event Repurchase Date and the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase DateRepurchase Price;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Conversion Agent;
(viivi) if applicable, the applicable Put Value Conversion Rate and any adjustments to the applicable Put Value Conversion Rate;
(viiivii) if applicable, that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Repurchase Notice has been previously delivered to the Company by a holder may be converted only if the holder withdraws the Designated Event Purchase Repurchase Notice in accordance with Section 14.01(c)the terms of the indenture;
(ixviii) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to immediately preceding the Designated Event Purchase Date Repurchase Date, subject to extension to comply with applicable law (the “Designated Event Expiration Time”);
(xix) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xix) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.0114.02.
(c) A Designated Event Purchase Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Designated Event Company Notice at any time prior to the close of business on the Business Day prior to the Designated Event Purchase Repurchase Date, specifying:
(i) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, or if not certificated, such notice must comply with appropriate procedures of the Depositary;,
(ii) the principal amount of the Note with respect to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Repurchase Notice, which portion must be in principal amounts of $1,000 2,000 or an integral multiple of $1,000;1,000 in excess thereof; provided, however, that if the Notes are not in certificated form, the notice must comply with appropriate procedures of the Depositary.
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the Business Day following the Designated Event Purchase Repurchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.045.04) an amount of money sufficient to repurchase on the Designated Event Purchase Repurchase Date all of the Notes to be repurchased on such date at the Designated Event Purchase Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Repurchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment of the Designated Event Purchase Repurchase Price in Section 14.0114.02), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Registerregister, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Repurchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes).
Appears in 2 contracts
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to maturity of the Debentures, then each Noteholder Debentureholder shall have the right, at such holder’s 's option, to require the Company to repurchase all of such holder’s Notes 's Debentures, or any portion thereof that is a multiple of $1,000 principal amount, for cash on the a date (the “Designated Event Purchase Date”) specified designated by the Company (the "Designated Event Repurchase Date") that is not less than twenty (20) days and not nor more than thirty-five (35) calendar days Business Days after the date of the Designated Event Company Notice (as defined belowin Section 3.05(b)) for such Designated Event (or, if such day is not a Business Day, the next succeeding Business Day) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest thereon Interest to, but excluding, the Designated Event Purchase Date (unless the Repurchase Date; provided that if such Designated Event Purchase Repurchase Date is between falls after a regular record date and on or prior to the corresponding interest payment date, then the Interest Payment Date to which it relates, in which case, the Company will pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to the Noteholders of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company interest payment date shall be paid in cash. However, notwithstanding to the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental Change, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% holders of record of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based Debentures on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option applicable record date instead of the holder thereof, upon:
(i) delivery to holders surrendering the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered Debentures for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth 20th day after the Effective Date occurrence of any a Designated Event, the Company or at its written request (which must be received by the Trustee at least five (5) Business Days prior to the date the Trustee is requested to give notice as described below, unless the Trustee shall provide agree in writing to a shorter period), the Trustee, in the name of and at the expense of the Company, shall mail or cause to be mailed to all holders of record on the date of the Notes and the Trustee and Paying Agent Designated Event a notice (the “"Designated Event Company Notice”") of the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing notice shall be by mailed in the manner and with the effect set forth in the first class mailparagraph of Section 3.02 (without regard for the time limits set forth therein). Simultaneously with providing If the Company shall give such notice, the Company shall also deliver a copy of the Designated Event Company Notice to the Trustee at such time as it is mailed to Debentureholders. Concurrently with the mailing of any Designated Event Notice, the Company shall issue a press release containing this informationannouncing such Designated Event referred to in the Designated Event Notice, the form and content of which press release shall be determined by the Company in its sole discretion, or (at the Company's sole election) the Company may publish a notice containing this information in a newspaper of general circulation in The City of New York or publish the such information on the Company’s its website or through such other public medium as the Company may shall use at such time. The failure to issue any such press release or otherwise publish such information or any defect therein shall not affect the validity of the Designated Event Notice or any proceedings for the repurchase of any Debenture that timeany Debentureholder may elect to have the Company repurchase as provided in this Section 3.05. Each Designated Event Company Notice shall specify:
(i) specify the events causing circumstances constituting the Designated Event, the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) Repurchase Date, the date of the Designated Event;
(iii) the last date on price at which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect shall be obligated to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) repurchase Debentures, that the holder must exercise the repurchase right on or prior to the close of business 5:00 p.m., New York City time, on the Business Day prior to the Designated Event Purchase Repurchase Date (the “"Designated Event Expiration Time”");
(x) , that the holder shall have the right to withdraw any Notes Debentures surrendered prior to the Designated Event Expiration Time, and
(xi) if the procedures Debentures are then convertible, that holders Debentures as to which an Option to Elect Repurchase Upon a Designated Event has been given may be converted only if the Option to Elect Repurchase Upon a Designated Event is withdrawn in accordance with the terms of this Indenture, a description of the procedure that a Debentureholder must follow to require exercise such repurchase right and to withdraw any surrendered Debentures, the Company place or places where the holder is to repurchase their Notessurrender such holder's Debentures, the amount of Interest accrued and unpaid on each Debenture to the Designated Event Repurchase Date and the CUSIP number or numbers of the Debentures (if then generally in use). No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ Debentureholders' repurchase rights or affect the validity of the proceedings for the repurchase of the Notes Debentures pursuant to this Section 14.013.05.
(c) Repurchases of Debentures under this Section 3.05 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other paying agent appointed by the Company) by a holder of a duly completed and executed notice (the "Option to Elect Repurchase Upon a Designated Event") in the form set forth on the reverse of the Debenture prior to the Designated Event Expiration Time; and
(ii) delivery or book-entry transfer of the Debentures to the Trustee (or other paying agent appointed by the Company) at any time simultaneous with or after delivery of the Option to Elect Repurchase Upon a Designated Event (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other paying agent appointed by the Company) in the Borough of Manhattan as provided in Section 6.02, such delivery being a condition to receipt by the holder of the repurchase price therefor; provided that such repurchase price shall be so paid pursuant to this Section 3.05 only if the Debenture so delivered to the Trustee (or other paying agent appointed by the Company) shall conform in all respects to the description thereof in the related Option to Elect Repurchase Upon a Designated Event. The Company shall purchase from the holder thereof, pursuant to this Section 3.05, a portion of a Debenture, if the principal amount of such portion is $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to the purchase of all of a Debenture also apply to the purchase of such portion of such Debenture. Upon presentation of any Debenture repurchased in part only, the Company shall execute and, upon the Company's written direction to the Trustee, the Trustee shall authenticate and make available for delivery to the holder thereof, at the expense of the Company, a new Debenture or Debentures, of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the Debentures presented. Notwithstanding anything herein to the contrary, any holder delivering to the Trustee (or other paying agent appointed by the Company) the Option to Elect Repurchase Upon a Designated Event contemplated by this Section 3.05 shall have the right to withdraw such Option to Elect Repurchase Upon a Designated Event at any time prior to the Designated Event Expiration Time by delivery of a written notice of withdrawal to the Trustee (or other paying agent appointed by the Company) in accordance with Section 3.05(d) below. Debentures in respect of which an Option to Elect Repurchase Upon a Designated Event has been given by the holder thereof may not be converted pursuant to Article 17 hereof on or after the date of the delivery of such Option to Elect Repurchase Upon a Designated Event unless such Option to Elect Repurchase Upon a Designated Event has first been validly withdrawn. The Trustee (or other paying agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Option to Elect Repurchase Upon a Designated Event or written notice of withdrawal thereof. For a Debenture, other than a Global Debenture to be so repurchased at the option of the holder, the Company must receive at the office or agency of the Company maintained for that purpose or, at the option of such holder, the Corporate Trust Office, such Debenture with the form entitled "Option to Elect Repurchase Upon A Designated Event" on the reverse thereof duly completed, together with such Debentures duly endorsed for transfer, on or before the Designated Event Purchase Notice Expiration Time. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Debenture for repurchase shall be determined by the Company, whose determination shall be final and binding absent manifest error.
(d) An Option to Elect Repurchase Upon a Designated Event may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent office of the Trustee (or other paying agent appointed by the Company) in accordance with the Option to Elect Repurchase Upon a Designated Event Company Notice at any time prior to the close of business on the Business Day prior to the Designated Event Purchase DateExpiration Time, specifying:
(i) if certificated Notes have been issued, the certificate numbers number, if any, of the withdrawn NotesDebenture in respect of which such notice of withdrawal is being submitted, or the appropriate Depositary information if not certificated, the Debenture in respect of which such notice must comply with appropriate procedures of the Depositary;withdrawal is being submitted is represented by a Global Debenture,
(ii) the principal amount of the Note Debenture with respect to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note Debenture that remains subject to the original Option to Elect Repurchase Upon a Designated Event Purchase Notice, which portion must and that has been or will be in principal amounts of $1,000 or an integral multiple of $1,000;delivered for purchase by the Company.
(de) On or prior to 11:00 a.m. (local time in The City of New York) on the Business Day following the Designated Event Purchase Repurchase Date, the Company will shall deposit with the Trustee or with one or more paying agents (or other Paying Agent appointed by the Company or or, if the Company is acting as its own Paying Agentpaying agent, set aside, segregate and hold in trust as provided in Section 3.046.04) an amount of money sufficient to repurchase on the Designated Event Purchase Repurchase Date all of the Notes Debentures to be repurchased on such date at the appropriate repurchase price, together with accrued and unpaid Interest to, but excluding, the Designated Event Purchase Price. Subject to receipt of funds and/or Notes Repurchase Date; provided that if such payment is made on the Designated Event Repurchase Date it must be received by the Trustee (or other Paying Agent appointed paying agent, as the case may be, by the Company)10:00 a.m., payment New York City time, on such date. Payment for Notes Debentures surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after (but in no event more than five (5) Business Days) following the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment of the Designated Event Purchase Price in Section 14.01)Repurchase Date, and (y) the time of book-entry transfer or the delivery of such Note to the Trustee Debenture surrendered for repurchase, by (or other Paying Agent appointed by the Companyi) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes Debentures entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made Debenture Register or (ii) on any Global Debenture by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by If on the Company, return to the Company any funds in excess of Business Day following the Designated Event Purchase Price.
(e) If Repurchase Date the Trustee (or other Paying Agent paying agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes Debentures or portions thereof that are to be purchased as of the Business Day following Designated Event Repurchase Date, then as of the Designated Event Purchase Date, then on and after the Designated Event Purchase Repurchase Date (i) such Notes the Debentures will cease to be outstanding and interest Outstanding, (ii) Interest on the Debentures will cease to accrue on accrue, and (iii) all other rights of the holders of such Notes (Debentures will terminate, whether or not book-entry transfer of the Notes Debentures has been made or the Notes Debentures have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (paying agent, other than the right to receive the Designated Event Purchase Price repurchase price upon delivery of the Notes)Debentures.
(f) [Reserved].
(g) The Company will comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act to the extent applicable and file a Schedule TO or any other required schedule or form under the Exchange Act to the extent then applicable in connection with the repurchase rights of the holders of Debentures in the event of a Designated Event.
Appears in 2 contracts
Samples: Indenture (Commscope Inc), Indenture (Commscope Inc)
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to maturity of the Notes, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase all of such holder’s Notes Notes, or any portion thereof that is a an integral multiple of $1,000 principal amount, for cash on the date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less than twenty thirty (2030) days and not more than thirty-five (35) calendar days after the date of the Designated Event Company Notice (as defined belowin Section 3.05(b)) of such Designated Event at a cash repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest thereon Interest, if any, to, but excluding, the Designated Event Purchase Repurchase Date; provided that if such Designated Event Repurchase Date (unless falls after a record date and on or prior to the corresponding interest payment date, then accrued and unpaid Interest, if any, to, but excluding the Designated Event Purchase Repurchase Date is between a regular record date and the corresponding Interest Payment Date to which it relates, in which case, the Company will pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to the Noteholders of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding on such interest payment date to the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental Change, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% holders of record of the consideration paid for Notes on the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists applicable record date instead of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, holders surrendering the Notes become puttable based for repurchase on the Put Value Rate determined on the basis of shares of such capital stockdate. Repurchases of Notes under this Section 14.01 3.05 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent paying agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Repurchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the close of business on the Designated Event Purchase DateExpiration Time; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent paying agent appointed by the Company) at any time after delivery of the Designated Event Purchase Repurchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent paying agent appointed by the Company) as provided in the Borough of ManhattanSection 4.02, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price repurchase price therefor; provided that such Designated Event Purchase Price repurchase price shall be so paid pursuant to this Section 14.01 3.05 only if the Note so delivered to the Trustee (or other Paying Agent paying agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Repurchase Notice. The Designated Event Purchase Notice Company shall state:
(A) if certificatedpurchase from the holder thereof, the certificate numbers of Notes pursuant to be delivered for repurchasethis Section 3.05, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the a portion of a Note, only if the principal amount of Notes to be repurchased, which must be such portion is $1,000 or an integral a whole multiple thereof, and
(C) of $1,000. Provisions of this Indenture that the Notes are to be repurchased by the Company pursuant apply to the applicable provisions purchase of all of a Note also apply to the Notes and the Indenturepurchase of such portion of such Note. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 3.05 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Repurchase Date and the time of the book-entry transfer or delivery of the Note. Notwithstanding anything herein to the contrary, any holder delivering to the Trustee (or other paying agent appointed by the Company) the Designated Event Repurchase Notice contemplated by this Section 3.05 shall have the right to withdraw such Designated Event Repurchase Notice at any time prior to the close of business on the Designated Event Expiration Time by delivery of a written notice of withdrawal to the Trustee (or other paying agent appointed by the Company) in accordance with Section 3.05(c) below. The Trustee (or other Paying Agent paying agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrenderedthereof.
(b) On or before the tenth fifteenth day after the Effective Date occurrence of any a Designated Event, the Company or at its written request (which must be received by the Trustee at least five (5) Business Days prior to the date the Trustee is requested to give notice as described below, unless the Trustee shall provide agree in writing to a shorter period), the Trustee, in the name of and at the expense of the Company, shall send or cause to be sent to all holders of record on the date of the Notes and the Trustee and Paying Agent Designated Event a notice (the “Designated Event Company Notice”) of the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing notice shall be by sent in the manner and with the effect set forth in the first class mailparagraph of Section 3.02 (without regard for the time limits set forth therein). Simultaneously with providing If the Company shall give such notice, the Company shall also deliver a copy of the Designated Event Notice to the Trustee at such time as it is sent to Noteholders. Concurrently with the sending of any Designated Event Notice, the Company shall issue a press release containing this informationannouncing such Designated Event referred to in the Designated Event Notice, publish a notice containing this information in a newspaper the form and content of general circulation in The City of New York or publish the information on the Company’s website or through such other public medium as which press release shall be determined by the Company in its sole discretion. The failure to issue any such press release or any defect therein shall not affect the validity of the Designated Event Notice or any proceedings for the repurchase of any Note which any Noteholder may use at that timeelect to have the Company repurchase as provided in this Section 3.05. Each Designated Event Company Notice shall specify:
(i) specify the events causing circumstances constituting the Designated Event, the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) Repurchase Date, the date of the Designated Event;
(iii) the last date on price at which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect shall be obligated to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) repurchase Notes, that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to immediately preceding the Designated Event Purchase Repurchase Date (the “Designated Event Expiration Time”);
(x) , that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) a description of the procedures that holders procedure which a Noteholder must follow to require exercise such repurchase right and to withdraw any surrendered Notes, the Company place or places where the holder is to repurchase their surrender such holder’s Notes, the amount of Interest accrued on each Note to the Designated Event Repurchase Date and the CUSIP number or numbers of the Notes (if then generally in use) and include a form of Designated Event Repurchase Notice. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.013.05.
(c) A Designated Event Purchase Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent office of the Trustee (or other paying agent appointed by the Company) in accordance with the Designated Event Company Repurchase Notice at any time prior to the close of business on the Business Day prior to the Designated Event Purchase DateExpiration Time, specifying:
(i) if certificated Notes have been issued, the certificate numbers number, if any, of the withdrawn NotesNote in respect of which such notice of withdrawal is being submitted, or the appropriate Depositary information if not certificated, the Note in respect of which such notice must comply with appropriate procedures of the Depositary;withdrawal is being submitted is represented by a Global Note,
(ii) the principal amount of the Note with respect to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that which remains subject to the original Designated Event Purchase Notice, Repurchase Notice and which portion must has been or will be in principal amounts of $1,000 or an integral multiple of $1,000;delivered for purchase by the Company.
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the Business Day following the Designated Event Purchase Repurchase Date, the Company will deposit with the Trustee (or other Paying Agent paying agent appointed by the Company or if the Company is acting as its own Paying Agentpaying agent, set aside, segregate and hold in trust as provided in Section 3.044.04) an amount of money sufficient to repurchase on the Designated Event Purchase Repurchase Date all of the Notes to be repurchased on such date at the appropriate repurchase price, together with accrued Interest to, but excluding, the Designated Event Purchase PriceRepurchase Date; provided that if such payment is made on the Designated Event Repurchase Date, it must be received by the Trustee or paying agent, as the case may be, by 10:00 a.m. New York City time, on such date. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent paying agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after (but in no event more than five (5) Business Days) following the later of (x) the Designated Event Purchase Repurchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment of the Designated Event Purchase Price in Section 14.01), 3.05) and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent paying agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 3.05) by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent paying agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Repurchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Repurchase Date, then on and or after the Designated Event Purchase Repurchase Date (i) such the Notes will cease to be outstanding and interest outstanding, (ii) Interest on the Notes will cease to accrue on accrue, and (iii) all other rights of the holders of such Notes (will terminate, whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (paying agent, other than the right to receive the Designated Event Purchase Price repurchase price upon delivery of the Notes.
(e) In the case of a reclassification, change, consolidation, merger, combination, sale or conveyance to which Section 14.07 applies, in which the Common Stock of the Company is changed or exchanged as a result into the right to receive stock, securities or other property or assets (including cash), which includes shares of Common Stock of the Company or shares of common stock of another Person that are, or upon issuance will be, traded on a United States national securities exchange or approved for trading on an established automated over-the-counter trading market in the United States and such shares constitute at the time such change or exchange becomes effective in excess of 50% of the aggregate Fair Market Value of such stock, securities or other property or assets (including cash) (as determined by the Company, which determination shall be conclusive and binding), then the Person formed by such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture (accompanied by an Opinion of Counsel that such supplemental indenture complies with the Trust Indenture Act as in force at the date of execution of such supplemental indenture) modifying the provisions of this Indenture relating to the right of holders of the Notes to cause the Company to repurchase the Notes following a Designated Event, including without limitation the applicable provisions of this Section 3.05 and the definitions of Common Stock and Designated Event, as appropriate, as determined in good faith by the Company (which determination shall be conclusive and binding), to make such provisions apply to such other Person if different from the Company and the common stock issued by such Person (in lieu of the Company and the Common Stock of the Company).
(f) The Company will comply with the provisions of Rule 13e-4 and any other tender offer rules under the Exchange Act (including, without limitation, filing a Schedule TO or other schedule) to the extent then applicable in connection with the repurchase rights of the holders of Notes in the event of a Designated Event.
Appears in 1 contract
Samples: Indenture (Headwaters Inc)
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to the Maturity Date, then each Noteholder shall have the right, at such holderHolder’s option, to require the Company Issuer to repurchase all of such holderHolder’s Notes Notes, or any portion thereof that is a multiple of $1,000 principal amount, for cash in cash, on the a date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less Issuer, which may be no earlier than twenty fifteen (2015) days and not more no later than thirty-five thirty (3530) calendar days after the date of the Issuer Designated Event Company Repurchase Notice (as defined below) related to such Designated Event, at a repurchase price equal to 100% of the principal amount thereofof the Notes being repurchased, together with plus accrued and unpaid interest thereon to, but excluding, the Designated Event Purchase Repurchase Date (unless the “Designated Event Repurchase Price”); provided, however, that if the Designated Event Purchase Repurchase Date is between falls after a regular record date Record Date and on or prior to the corresponding Interest Payment Date to which it relates, in which caseinterest payment date, the Company will Issuer shall pay the full amount of accrued and unpaid interest payable interest, if any, on such Interest Payment Date interest payment date to the Noteholders Holder of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental ChangeRecord Date, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or Repurchase Price will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion 100% of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth 20th calendar day after the Effective Date occurrence of any a Designated EventEvent (such date, the Company “Issuer Designated Event Repurchase Notice Date”), the Issuer shall provide give or cause to be given to all holders Holders of record on the date of the Notes Designated Event (and the Trustee and Paying Agent to beneficial owners as required by applicable law) a notice (the an “Issuer Designated Event Company Repurchase Notice”) as set forth in Section 4.02 with respect to such Designated Event. The Issuer shall also deliver a copy of the Issuer Designated Event Repurchase Notice to the Trustee, Exchange Agent and the Paying Agent at such time as it is given to Noteholders. In addition to the giving of such Issuer Designated Event Repurchase Notice, the Issuer shall disseminate a press release announcing the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing or publish such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a The Wall Street Journal or another newspaper of general circulation in The City of New York or publish the information on the Company’s website website, or through such other public medium as the Company may use Issuer shall deem appropriate at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company Issuer to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.014.01.
(c) A Designated Event Purchase Notice may For a Note to be withdrawn by means repurchased at the option of a written notice of withdrawal delivered the Holder pursuant to this Section 4.01(c), the Holder must deliver to the Paying Agent in accordance with the Designated Event Company Notice at any time Agent, prior to the close of business on the second Business Day immediately prior to the Designated Event Purchase Repurchase Date, specifying:
(i) a written notice of repurchase (the “Designated Event Repurchase Notice”) in the form set forth on the reverse of the Note duly completed specifying (A) (if certificated Notes have been issued, the Note is certificated) the certificate numbers number of the withdrawn NotesNote that the Holder will deliver to be repurchased or (if the Note is represented by a Global Note) that the relevant Designated Event Repurchase Notice complies with the appropriate Depositary procedures, or if not certificated, such notice must comply with appropriate procedures (B) the portion of the Depositary;
(ii) the principal amount of the Note with respect which the Holder will deliver to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Noticebe repurchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;1,000 (provided that the remaining principal amount of Notes not subject to repurchase must be in an authorized denomination) and (C) that such Note shall be repurchased as of the Designated Event Repurchase Date pursuant to the terms and conditions specified in the Note and in this Indenture; together with (ii) such Notes duly endorsed for transfer (if the Note is certificated) or book-entry transfer of such Note (if such Note is represented by a Global Note). The delivery of such Note to the Paying Agent with, or at any time after delivery of, the Designated Event Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent shall be a condition to the receipt by the Holder of the Designated Event Repurchase Price therefor; provided, however, that such Designated Event Repurchase Price shall be so paid pursuant to this Section 4.01 only if the Notes so delivered to the Paying Agent shall conform in all respects to the description thereof in the Designated Event Repurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Issuer, whose determination shall be final and binding absent manifest error, and the Trustee and Paying Agent may rely and shall be fully protected in relying on such determination by the Issuer.
(d) On The Issuer, if so requested, shall repurchase from the Holder thereof, pursuant to this Section 4.01, a portion of a Note, if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of such portion of such Note.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Issuer pursuant to this Section 4.01 if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded or cured, on or prior to 11:00 a.m. the relevant Repurchase Date (local time except in The City the case of New York) on an acceleration resulting from a default by the Business Day following Issuer in the payment of the Designated Event Purchase Date, the Company will deposit Repurchase Price pursuant to this Section 4.01 with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money sufficient respect to repurchase on the Designated Event Purchase Date all of the Notes to be repurchased on such date at repurchased).
(f) The Paying Agent shall promptly notify the Issuer of the receipt by it of any Designated Event Purchase PriceRepurchase Notice or written notice of withdrawal thereof. Subject to receipt of funds and/or Notes Any repurchase by the Trustee (or other Paying Agent appointed Issuer contemplated pursuant to the provisions of this Section 4.01 shall be consummated by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior delivery of the consideration to be received by the Designated Event Expiration Time will be made promptly after Holder on the later of (x) two (2) Business Days following the time of book-entry transfer or delivery of such Note to the Paying Agent by the Holder thereof in the manner required by this Section 4.01 and (y) the Designated Event Purchase Repurchase Date with respect to such Note (provided the holder Holder has satisfied the conditions to the payment in this Section 4.01). Payment of the Designated Event Purchase Repurchase Price in Section 14.01), on the Designated Event Repurchase Date for a Note for which a Designated Event Xxxxxxxxxx Notice has been delivered and (y) the time of not withdrawn is conditioned upon book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes), together with necessary endorsements, to the Paying Agent prior to the close of business on the second Business Day prior to the Designated Event Repurchase Date.
Appears in 1 contract
Repurchase at Option of Holders Upon a Designated Event. (a) If a Designated Event occurs at any time, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase all of such holder’s Notes or any portion thereof that is a multiple of $1,000 principal amount, for cash on the date (the “Designated Event Purchase Date”) specified by the Company that is not less than twenty (20) days and not more than thirty-five (35) calendar days after the date of the Designated Event Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest (including Additional Amount, if any) thereon to, but excluding, the Designated Event Purchase Date (unless the Designated Event Purchase Date is between a regular record date and the corresponding Interest Payment Date to which it relates, in which case, the Company will pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to the Noteholders of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental Change, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global National Market prior to its designation as a national securities exchange (or will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth day after the Effective Date of any Designated Event, the Company shall provide to all holders of record of the Notes and the Trustee and Paying Agent a notice (the “Designated Event Company Notice”) of the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a newspaper of general circulation in The City of New York or publish the information on the Company’s website or through such other public medium as the Company may use at that time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.01.
(c) A Designated Event Purchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Designated Event Company Notice at any time prior to the close of business on the Business Day prior to the Designated Event Purchase Date, specifying:
(i) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(ii) the principal amount of the Note with respect to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money sufficient to repurchase on the Designated Event Purchase Date all of the Notes to be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment of the Designated Event Purchase Price in Section 14.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes).
Appears in 1 contract
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to maturity of the Notes, then each Noteholder shall have the right, at such holderHolder’s option, to require the Company Issuer to repurchase all of such holderHolder’s Notes Notes, or any portion thereof that is a multiple of $1,000 principal amount, for cash in cash, on the a date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less Issuer, which may be no earlier than twenty fifteen (2015) days and not more no later than thirty-five thirty (3530) calendar days after the date of the Issuer Repurchase Notice related to such Designated Event Company Notice (as defined below) Event, at a repurchase price equal to 100% of the principal amount thereofof the Notes being repurchased, together with plus accrued and unpaid interest thereon to, but excluding, the Designated Event Purchase Date (unless Repurchase Date; provided, however, that if the Designated Event Purchase Repurchase Date is between falls after a regular record date Record Date and on or prior to the corresponding Interest Payment Date to which it relates, in which caseinterest payment date, the Company Issuer will pay the full amount of accrued and unpaid interest payable interest, if any (plus Additional Interest, if any), on such Interest Payment Date interest payment date to the Noteholders Holder of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental ChangeRecord Date, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or repurchase price will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion 100% of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth twentieth calendar day after the Effective Date occurrence of any a Designated Event, the Company Issuer shall provide mail or cause to be mailed to all holders Holders of record on the date of the Notes Designated Event (and to beneficial owners as required by applicable law) an Issuer Repurchase Notice as set forth in Section 3.07 with respect to such Designated Event. The Issuer shall also deliver a copy of the Issuer Repurchase Notice to the Trustee and the Paying Agent at such time as it is mailed to Noteholders. In addition to the mailing of such Issuer Repurchase Notice, the Issuer shall disseminate a notice (the “Designated Event Company Notice”) of press release through Dow Jxxxx & Company, Inc. or Bloomberg Business News announcing the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing or publish such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a The Wall Street Journal or another newspaper of general circulation in The City of New York or publish the information on the CompanyGuarantor’s website website, or through such other public medium as the Company may use Issuer shall deem appropriate at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company Issuer to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.013.05.
(c) A Designated Event Purchase Notice may For a Note to be withdrawn by means repurchased at the option of a written notice of withdrawal delivered the Holder pursuant to this Section 3.05(c), the Holder must deliver to the Paying Agent in accordance with the Designated Event Company Notice at any time Agent, prior to the close of business 5:00 p.m., New York City time, on the second Business Day immediately prior to the Designated Event Purchase Repurchase Date, specifying:
(i) a written notice of repurchase (the “Designated Event Repurchase Notice”) in the form set forth on the reverse of the Note duly completed (if certificated Notes have been issued, the Note is certificated) or stating the following (if the Note is represented by a Global Note): (A) the certificate numbers number of the withdrawn NotesNote that the Holder will deliver to be repurchased (if the Note is certificated) or that the relevant Designated Event Repurchase Notice complies with the appropriate Depositary procedures (if the Note is represented by a Global Note), or if not certificated, such notice must comply with appropriate procedures (B) the portion of the Depositary;
(ii) the principal amount of the Note with respect which the Holder will deliver to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Noticebe repurchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
1,000 (d) On or prior to 11:00 a.m. (local time in The City of New York) on provided that the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an remaining principal amount of money sufficient Notes not subject to repurchase on the Designated Event Purchase Date all must be in an integral multiple of the Notes to $1,000) and (C) that such Note shall be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment as of the Designated Event Purchase Price Repurchase Date pursuant to the terms and conditions specified in Section 14.01), the Note and in this Indenture; together with (yii) such Notes duly endorsed for transfer (if the time of Note if certificated) or book-entry transfer or the of such Note (if such Note is represented by a Global Note). The delivery of such Note to the Trustee (or other Paying Agent appointed with, or at any time after delivery of, the Designated Event Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent shall be a condition to the receipt by the Company) by Holder of the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, repurchase price therefor; provided, however, that payments such repurchase price shall be so paid pursuant to this Section 3.05 only if the Notes so delivered to the Depositary Paying Agent shall be made by wire transfer of immediately available funds conform in all respects to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds description thereof in excess of the Designated Event Purchase PriceRepurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Issuer, whose determination shall be final and binding absent manifest error.
(d) The Issuer, if so requested, shall repurchase from the Holder thereof, pursuant to this Section 3.05, a portion of a Note, if the principal amount of such portion is $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of such portion of such Note.
(e) If Notwithstanding the foregoing, no Notes may be repurchased by the Issuer pursuant to this Section 3.05 if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded or cured, on or prior to the relevant Designated Event Repurchase Date (except in the case of an acceleration resulting from a default by the Issuer in the payment of the repurchase price pursuant to this Section 3.05 with respect to the Notes to be repurchased).
(f) The Paying Agent shall promptly notify the Issuer of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof.
(g) The Issuer may arrange for a third party to purchase the Notes (provided that the Trustee (or other Paying Agent appointed is so notified by the CompanyIssuer promptly) holds money sufficient to repurchase on for which the Issuer receives a valid Designated Event Purchase Date all Repurchase Notice that is not withdrawn, in the manner and otherwise in compliance with the requirements set forth herein. If a third party purchases any Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Dateunder these circumstances, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease continue to accrue on such Notes and such Notes will continue to be outstanding after the Designated Event Repurchase Date and will be fungible with all other Notes outstanding. The third party subsequently may resell such purchased Notes to other investors. Any repurchase by the Issuer contemplated pursuant to the provisions of this Section 3.05 shall be consummated by the delivery of the consideration to be received by the Holder (whether or not i) on the Designated Event Repurchase Date if the book-entry transfer or delivery of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); Agent is effected prior to the close of business on the second Business Day prior to the Designated Event Repurchase Date, and (ii) all other rights if delivered later, within two (2) Business Days following the time of the holders book-entry transfer or delivery of such Notes will terminate (other than the right to receive Note. Payment of the repurchase price for a Note for which a Designated Event Purchase Price Repurchase Notice has been delivered and not withdrawn is conditioned upon book-entry transfer or delivery of the Notes), together with necessary endorsements, to the Paying Agent.
Appears in 1 contract
Samples: Indenture (BioMed Realty Trust Inc)
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to maturity of the Notes, then each Noteholder shall have the right, at such holderHolder’s option, to require the Company Issuer to repurchase all of such holderHolder’s Notes Notes, or any portion thereof that is a an integral multiple of $1,000 principal amount, for cash in cash, on the a date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less Issuer, which may be no earlier than twenty fifteen (2015) days and not more no later than thirty-five thirty (3530) calendar days after the date of the Issuer Repurchase Notice related to such Designated Event Company Notice (as defined below) Event, at a repurchase price equal to 100% of the principal amount thereofof the Notes being repurchased, together with plus accrued and unpaid interest thereon to, but excluding, the Designated Event Purchase Date (unless Repurchase Date; provided, however, that if the Designated Event Purchase Repurchase Date is between falls after a regular record date Record Date and on or prior to the corresponding Interest Payment Date to which it relates, in which caseinterest payment date, the Company Issuer will pay the full amount of accrued and unpaid interest payable interest, if any, on such Interest Payment Date interest payment date to the Noteholders Holder of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental ChangeRecord Date, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or repurchase price will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion 100% of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth calendar day after the Effective Date occurrence of any a Designated Event, the Company Issuer shall provide deliver or cause to be delivered to all holders Holders of record on the date of the Notes Designated Event (and to beneficial owners as required by applicable law) an Issuer Repurchase Notice as set forth in Section 3.06 with respect to such Designated Event. The Issuer shall also deliver a copy of the Issuer Repurchase Notice to the Trustee and the Paying Agent at such time as it is delivered to Noteholders. In addition to the delivery of such Issuer Repurchase Notice, the Issuer shall disseminate a notice (the “Designated Event Company Notice”) of press release through Dow Xxxxx & Company, Inc. or Bloomberg Business News announcing the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing or publish such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a The Wall Street Journal or another newspaper of general circulation in The City of New York or publish the information on the CompanyGuarantor’s website web site, or through such other public medium as the Company may use Issuer shall deem appropriate at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company Issuer to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.013.05.
(c) A Designated Event Purchase Notice may For a Note to be withdrawn by means repurchased at the option of a written notice of withdrawal delivered the Holder pursuant to this Section 3.05(c), the Holder must deliver to the Paying Agent in accordance with the Designated Event Company Notice at any time Agent, prior to the close of business 5:00 p.m., New York City time, on the second Business Day immediately prior to the Designated Event Purchase Repurchase Date, specifying:
(i) a written notice of repurchase (the “Designated Event Repurchase Notice”) in the form set forth on the reverse of the Note duly completed (if certificated Notes have been issued, the Note is certificated) or stating the following (if the Note is represented by a Global Note): (A) the certificate numbers number of the withdrawn NotesNote that the Holder will deliver to be repurchased (if the Note is certificated) or that the relevant Designated Event Repurchase Notice complies with the appropriate Depositary procedures (if the Note is represented by a Global Note), or if not certificated, such notice must comply with appropriate procedures (B) the portion of the Depositary;
(ii) the principal amount of the Note with respect which the Holder will deliver to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Noticebe repurchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
1,000 (d) On or prior to 11:00 a.m. (local time in The City of New York) on provided that the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an remaining principal amount of money sufficient Notes not subject to repurchase on the Designated Event Purchase Date all must be in an integral multiple of the Notes to $1,000) and (C) that such Note shall be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment as of the Designated Event Purchase Price Repurchase Date pursuant to the terms and conditions specified in Section 14.01), the Note and in this Indenture; together with (yii) such Notes duly endorsed for transfer (if the time of Note if certificated) or book-entry transfer or the of such Note (if such Note is represented by a Global Note). The delivery of such Note to the Trustee (or other Paying Agent appointed with, or at any time after delivery of, the Designated Event Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent shall be a condition to the receipt by the Company) by Holder of the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, repurchase price therefore; provided, however, that payments such repurchase price shall be so paid pursuant to this Section 3.05 only if the Notes so delivered to the Depositary Paying Agent shall be made by wire transfer of immediately available funds conform in all respects to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds description thereof in excess of the Designated Event Purchase PriceRepurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Issuer, whose determination shall be final and binding absent manifest error.
(d) The Issuer, if so requested, shall repurchase from the Holder thereof, pursuant to this Section 3.05, a portion of a Note, if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of such portion of such Note.
(e) If Notwithstanding the Trustee (or other Paying Agent appointed foregoing, no Notes may be repurchased by the Company) holds money sufficient Issuer pursuant to repurchase on this Section 3.05 if the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer principal amount of the Notes has been made accelerated, and such acceleration has not been rescinded or cured, on or prior to the relevant Designated Event Repurchase Date (except in the case of an acceleration resulting from a default by the Issuer in the payment of the repurchase price pursuant to this Section 3.05 with respect to the Notes have been delivered to be repurchased).
(f) The Paying Agent shall promptly notify the Issuer of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof.
(g) The Issuer may arrange for a third party to purchase any Notes (provided that the Trustee is so notified by Issuer promptly) for which the Issuer receives a valid Designated Event Repurchase Notice that is not withdrawn, in the manner and otherwise in compliance with the requirements set forth herein. If a third party purchases any Notes under these circumstances, interest will continue to accrue on those Notes and such Notes will continue to be outstanding after the Designated Event Repurchase Date. The third party subsequently may resell such purchased Notes to other investors. Any repurchase by the Issuer contemplated pursuant to the Trustee provisions of this Section 3.05 shall be consummated by the delivery of the consideration to be received by the Holder (i) on the Designated Event Repurchase Date if the book-entry transfer or delivery of the Notes to the Paying Agent); Agent is effected prior to the close of business on the second Business Day prior to the Designated Event Repurchase Date, and (ii) all other rights if delivered later, within two (2) Business Days following the time of the holders book-entry transfer or delivery of such Notes will terminate (other than the right to receive Note. Payment of the repurchase price for a Note for which a Designated Event Purchase Price Repurchase Notice has been delivered and not withdrawn is conditioned upon book-entry transfer or delivery of the Notes), together with necessary endorsements, to the Paying Agent.
Appears in 1 contract
Samples: Indenture (Pennsylvania Real Estate Investment Trust)
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to maturity of the Debentures, then each Noteholder Debentureholder shall have the right, at such holderHolder’s option, to require the Company Issuer to repurchase all of such holderHolder’s Notes Debentures, or any portion thereof that is a multiple of $1,000 principal amount, for cash in cash, on the a date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less Issuer, which may be no earlier than twenty fifteen (2015) days and not more no later than thirty-five thirty (3530) calendar days after the date of the Issuer Repurchase Notice related to such Designated Event Company Notice (as defined below) Event, at a repurchase price equal to 100% of the principal amount thereofof the Debentures being repurchased, together with plus accrued and unpaid interest thereon to, but excluding, the Designated Event Purchase Date (unless Repurchase Date; provided, however, that if the Designated Event Purchase Repurchase Date is between falls after a regular record date Record Date and on or prior to the corresponding Interest Payment Date to which it relates, in which caseinterest payment date, the Company Issuer will pay the full amount of accrued and unpaid interest payable interest, if any, on such Interest Payment Date interest payment date to the Noteholders Holder of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental ChangeRecord Date, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or repurchase price will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion 100% of the principal amount of Notes the Debentures to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth calendar day after the Effective Date occurrence of any a Designated Event, the Company Issuer shall provide mail or cause to be mailed (or sent by electronic transmission) to all holders Holders of record on the date of the Notes Designated Event (and to beneficial owners as required by applicable law) an Issuer Repurchase Notice as set forth in Section 3.07 with respect to such Designated Event. The Issuer shall also deliver a copy of the Issuer Repurchase Notice to the Trustee and the Paying Agent at such time as it is mailed to Debentureholders. In addition to the mailing of such Issuer Repurchase Notice, the Issuer shall disseminate a notice (the “Designated Event Company Notice”) of press release through Dow Xxxxx & Company, Inc. or Bloomberg Business News announcing the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing or publish such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a The Wall Street Journal or another newspaper of general circulation in The City of New York or publish the information on the CompanyGuarantor’s website website, or through such other public medium as the Company may use Issuer shall deem appropriate at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company Issuer to give the foregoing notices and no defect therein shall limit the NoteholdersDebentureholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes Debentures pursuant to this Section 14.013.05.
(c) A Designated Event Purchase Notice may For a Debenture to be withdrawn by means repurchased at the option of a written notice of withdrawal delivered the Holder pursuant to this Section 3.05, the Holder must deliver to the Paying Agent in accordance with the Designated Event Company Notice at any time Agent, prior to the close of business 5:00 p.m., New York City time, on the second Business Day immediately prior to the Designated Event Purchase Repurchase Date, specifying:
(i) a written notice of repurchase (the “Designated Event Repurchase Notice”) in the form set forth on the reverse of the Debenture duly completed (if certificated Notes have been issued, the Debenture is certificated) or stating the following (if the Debenture is represented by a Global Debenture): (A) the certificate numbers number of the withdrawn NotesDebenture that the Holder will deliver to be repurchased (if the Debenture is certificated) or that the relevant Designated Event Repurchase Notice complies with the appropriate Depository procedures (if the Debenture is represented by a Global Debenture), or if not certificated, such notice must comply with appropriate procedures (B) the portion of the Depositary;
(ii) the principal amount of the Note with respect Debenture which the Holder will deliver to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Noticebe repurchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;1,000 (provided that the remaining principal amount of Debentures not subject to repurchase must be in an authorized denomination) and (C) that such Debenture shall be repurchased as of the Designated Event Repurchase Date pursuant to the terms and conditions specified in the Debenture and in this Indenture; together with (ii) such Debentures duly endorsed for transfer (if the Debenture is certificated) or book-entry transfer of such Debenture (if such Debenture is represented by a Global Debenture). The delivery of such Debenture to the Paying Agent with, or at any time after delivery of, the Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent shall be a condition to the receipt by the Holder of the repurchase price therefore; provided, however, that such repurchase price shall be so paid pursuant to this Section 3.05 only if the Debentures so delivered to the Paying Agent shall conform in all respects to the description thereof in the Repurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Debenture for repurchase shall be determined by the Issuer, whose determination shall be final and binding absent any manifest error.
(d) On The Issuer, if so requested, shall repurchase from the Holder thereof, pursuant to this Section 3.05, a portion of a Debenture, if the principal amount of such portion is $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Debenture also apply to the repurchase of such portion of such Debenture.
(e) Notwithstanding the foregoing, no Debentures may be repurchased by the Issuer pursuant to this Section 3.05 if the principal amount of the Debentures has been accelerated, and such acceleration has not been rescinded or cured, on or prior to 11:00 a.m. the relevant Repurchase Date (local time except in the case of an acceleration resulting from a default by the Issuer in the payment of the repurchase price pursuant to this Section 3.05 with respect to the Debentures to be repurchased).
(f) The City of New York) on the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed shall promptly notify the Issuer of the receipt by it of any Repurchase Notice or written notice of withdrawal thereof. Any repurchase by the Company or if Issuer contemplated pursuant to the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in provisions of this Section 3.043.05 shall be consummated by the delivery of the consideration to be received by the Holder (i) an amount of money sufficient to repurchase on the Designated Event Purchase Repurchase Date all if the book-entry transfer or delivery of the Notes Debentures to be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by is effected prior to the Company), payment for Notes surrendered for repurchase (and not withdrawn) close of business on the second Business Day prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment of the Designated Event Purchase Price in Section 14.01)Repurchase Date, and (yii) if delivered later, within two (2) Business Days following the time of the book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account Debenture. Payment of the Depositary or its nominee. The Trustee shall, promptly after such payment repurchase price for a Debenture for which a Repurchase Notice has been delivered and not withdrawn is conditioned upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes)Debentures, together with necessary endorsements, to the Paying Agent.
Appears in 1 contract
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to maturity of the Notes, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase all of such holder’s Notes Notes, or any portion thereof that is a multiple of $1,000 principal amount, for cash on the a date (the “Designated Event Purchase Repurchase Date”) specified to be selected by the Company that is not less than twenty (20) days and not 30 nor more than thirty-five (35) calendar 60 days after the date of the Designated Event Company Notice (as defined belowin Section 3.05(b)) of such Designated Event (or, if such date is not a Business Day, the next succeeding Business Day) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest thereon to, but excluding, the Designated Event Purchase Date (unless the Repurchase Date; provided that if such Designated Event Purchase Repurchase Date is between a regular record date and an interest payment date, then the corresponding Interest Payment Date to which it relates, in which case, the Company will pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to the Noteholders of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company interest payment date shall be paid in cashto the holders of record of the Notes on the applicable record date instead of the holders surrendering the Notes for repurchase on such date. However, notwithstanding the foregoing, in the case of a Designated Event that is a Fundamental Change, Noteholders will not have the right to require the Company to purchase repurchase any Notes upon under clauses (1) or (2) of the definition of a Fundamental Change, Change (and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, ) if at least 90% of the consideration paid for the Company’s Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such a merger or consolidation constituting a Fundamental Change transaction under clause (2) of the definition of a Fundamental Change consists of shares of capital stock or American Depositary Receipts in respect of shares of capital stock traded on a the New York Stock Exchange or another U.S. national securities exchange or approved for quotation quoted on a an established automated over-the-counter trading market in the United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or will be so traded or quoted immediately following the completion of such merger or consolidation) and, as a result of the completion of such transactionmerger or consolidation, the Notes become puttable based on the Put Value Rate determined on the basis of convertible into such shares of such capital stockstock or such American Depositary Receipts. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it Upon presentation of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (withonly, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall executeexecute and, and upon the Company’s written direction to the Trustee, the Trustee shall authenticate and make available for delivery to the holder thereof, at the expense of such Note without service chargethe Company, a new Note or Notes, containing identical terms and conditionsof authorized denominations, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrenderedpresented.
(b) On or before the tenth day after the Effective Date occurrence of any a Designated Event, the Company or at its written request (which must be received by the Trustee at least five Business Days prior to the date the Trustee is requested to give notice as described below, unless the Trustee shall provide agree in writing to a shorter period), the Trustee, in the name of and at the expense of the Company, shall mail or cause to be mailed to all holders of record on the date of the Notes and the Trustee and Paying Agent Designated Event a notice (the “Designated Event Company Notice”) of the occurrence of such Designated Event and of the repurchase right at the option of the holders Noteholders arising as a result thereof. If the Trustee does not mail the Designated Event Notice to the holders of record, the Company shall also mail the Designated Event Notice to the Trustee on or before the tenth day after the occurrence of the Designated Event. Such mailing notice shall be by mailed in the manner and with the effect set forth in the first class mailparagraph of Section 3.02 (without regard for the time limits set forth therein). Simultaneously Concurrently with providing such noticethe mailing of any Designated Event Notice, the Company shall issue a press release containing this informationannouncing such Designated Event referred to in the Designated Event Notice, publish a notice containing this information in a newspaper the form and content of general circulation in The City of New York or publish the information on the Company’s website or through such other public medium as which press release shall be determined by the Company in its sole discretion. The failure to issue any such press release or any defect therein shall not affect the validity of the Designated Event Notice or any proceedings for the repurchase of any Note which any Noteholder may use at that timeelect to have the Company repurchase as provided in this Section 3.05. Each Designated Event Company Notice shall specify:
(i) specify the events causing circumstances constituting the Designated Event, the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) Repurchase Date, the date of the Designated Event;
(iii) the last date on price at which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect shall be obligated to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) repurchase Notes, that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Repurchase Date (the “Designated Event Expiration Time”);
(x) , that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) a description of the procedures that holders procedure which a Noteholder must follow to require exercise such repurchase right and to withdraw any surrendered Notes, the Company amount of interest accrued on each Note to repurchase their Notes(but excluding) the Designated Event Repurchase Date and the CUSIP number or numbers of the Notes (if then generally in use). No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.013.05.
(c) A Designated Event Purchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Designated Event Company Notice at any time prior to the close of business on the Business Day prior to the Designated Event Purchase Date, specifying:
(i) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(ii) the principal amount of the Note with respect to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money sufficient to repurchase on the Designated Event Purchase Date all of the Notes to be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment of the Designated Event Purchase Price in Section 14.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes).
Appears in 1 contract
Samples: Indenture (Agco Corp /De)
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to the Maturity Date, then each Noteholder shall have the right, at such holderHolder’s option, to require the Company Issuer to repurchase all of such holderHolder’s Notes Notes, or any portion thereof that is a multiple of $1,000 principal amount, for cash in cash, on the a date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less Issuer, which may be no earlier than twenty fifteen (2015) days and not more no later than thirty-five thirty (3530) calendar days after the date of the Issuer Repurchase Notice related to such Designated Event Company Notice (as defined below) Event, at a repurchase price equal to 100% of the principal amount thereofof the Notes being repurchased, together with plus accrued and unpaid interest thereon to, but excluding, the Designated Event Purchase Date (unless Repurchase Date; provided, however, that if the Designated Event Purchase Repurchase Date is between falls after a regular record date Record Date and on or prior to the corresponding Interest Payment Date to which it relates, in which caseinterest payment date, the Company will Issuer shall pay the full amount of accrued and unpaid interest payable interest, if any, on such Interest Payment Date interest payment date to the Noteholders Holder of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental ChangeRecord Date, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or repurchase price will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion 100% of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth day Within ten calendar days after the Effective Date occurrence of any a Designated Event, the Company Issuer shall provide give or cause to be given to all holders Holders of record on the date of the Notes Designated Event (and to beneficial owners to the extent required by applicable law) an Issuer Repurchase Notice as set forth in Section 3.07 with respect to such Designated Event. The Issuer shall also deliver a copy of the Issuer Repurchase Notice to the Trustee and the Paying Agent at such time as it is given to Noteholders. In addition to the giving of such Issuer Repurchase Notice, the Issuer shall disseminate a notice (the “Designated Event Company Notice”) of press release through Dow Xxxxx & Company, Inc. or Bloomberg Business News announcing the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing or publish such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a The Wall Street Journal or another newspaper of general circulation in The City of New York or publish the information on the Company’s website Strategic Hotels’ website, or through such other public medium as the Company may use Issuer shall deem appropriate at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company Issuer to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.013.05.
(c) A Designated Event Purchase Notice may For a Note to be withdrawn by means repurchased at the option of a written notice of withdrawal delivered the Holder pursuant to this Section 3.05(c), the Holder must deliver to the Paying Agent in accordance with the Designated Event Company Notice at any time Agent, prior to the close of business on the Business Day immediately prior to the Designated Event Purchase Repurchase Date, specifying:
(i) a written notice of repurchase (the “Designated Event Repurchase Notice”) in the form set forth on the reverse of the Note duly completed specifying (A) (if certificated Notes have been issued, the Note is certificated) the certificate numbers number of the withdrawn NotesNote that the Holder will deliver to be repurchased or (if the Note is represented by a Global Note) that the relevant Designated Event Repurchase Notice complies with the appropriate Depositary procedures, or if not certificated, such notice must comply with appropriate procedures (B) the portion of the Depositary;
(ii) the principal amount of the Note with respect which the Holder will deliver to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Noticebe repurchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;1,000 (provided that the remaining principal amount of Notes not subject to repurchase must be in an authorized denomination) and (C) that such Note shall be repurchased as of the Designated Event Repurchase Date pursuant to the terms and conditions specified in the Note and in this Indenture; together with (ii) such Notes duly endorsed for transfer (if the Note if certificated) or book-entry transfer of such Note (if such Note is represented by a Global Note). The delivery of such Note to the Paying Agent with, or at any time after delivery of, the Designated Event Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent shall be a condition to the receipt by the Holder of the repurchase price therefore; provided, however, that such repurchase price shall be so paid pursuant to this Section 3.05 only if the Notes so delivered to the Paying Agent shall conform in all respects to the description thereof in the Designated Event Repurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Issuer, whose determination shall be final and binding absent manifest error, and the Trustee may rely and shall be fully protected in relying on such determination by the Issuer.
(d) On The Issuer, if so requested, shall repurchase from the Holder thereof, pursuant to this Section 3.05, a portion of a Note, if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of such portion of such Note.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Issuer pursuant to this Section 3.05 if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded or cured, on or prior to 11:00 a.m. the relevant Repurchase Date (local time except in The City the case of New York) on the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed an acceleration resulting from a default by the Company or if Issuer in the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in payment of the repurchase price pursuant to this Section 3.04) an amount of money sufficient 3.05 with respect to repurchase on the Designated Event Purchase Date all of the Notes to be repurchased on such date at repurchased).
(f) The Paying Agent shall promptly notify the Issuer of the receipt by it of any Designated Event Purchase PriceRepurchase Notice or written notice of withdrawal thereof. Subject to receipt of funds and/or Notes Any repurchase by the Trustee (or other Paying Agent appointed Issuer contemplated pursuant to the provisions of this Section 3.05 shall be consummated by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior delivery of the consideration to be received by the Designated Event Expiration Time will be made promptly after Holder on the later of (x) the time of book-entry transfer or delivery of such Note to the Paying Agent by the Holder thereof in the manner required by this Section 3.05 and (y) the Designated Event Purchase Repurchase Date with respect to such Note (provided the holder Holder has satisfied the conditions to in this Section 3.05). Payment of the payment of repurchase price on the Designated Event Purchase Price in Section 14.01), Repurchase Date for a Note for which a Designated Event Repurchase Notice has been delivered and (y) the time of not withdrawn is conditioned upon book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes), together with necessary endorsements, to the Paying Agent prior to the close of business on the Business Day prior to the Designated Event Repurchase Date.
Appears in 1 contract
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to maturity of the Debentures, then each Noteholder Debentureholder shall have the right, at such holderHolder’s option, to require the Company Issuer to repurchase all of such holderHolder’s Notes Debentures, or any portion thereof that is a multiple of $1,000 principal amount, for cash in cash, on the a date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less Issuer, which may be no earlier than twenty fifteen (2015) days and not more no later than thirty-five thirty (3530) calendar days after the date of the Issuer Repurchase Notice related to such Designated Event Company Notice (as defined below) Event, at a repurchase price equal to 100% of the principal amount thereofof the Debentures being repurchased, together with plus accrued and unpaid interest thereon to, but excluding, the Designated Event Purchase Date (unless Repurchase Date; provided, however, that if the Designated Event Purchase Repurchase Date is between falls after a regular record date Record Date and on or prior to the corresponding Interest Payment Date to which it relates, in which caseinterest payment date, the Company Issuer will pay the full amount of accrued and unpaid interest payable interest, if any, on such Interest Payment Date interest payment date to the Noteholders Holder of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental ChangeRecord Date, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or repurchase price will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion 100% of the principal amount of Notes the Debentures to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth calendar day after the Effective Date occurrence of any a Designated Event, the Company Issuer shall provide mail or cause to be mailed to all holders Holders of record on the date of the Notes Designated Event (and to beneficial owners as required by applicable law) an Issuer Repurchase Notice as set forth in Section 3.07 with respect to such Designated Event. The Issuer shall also deliver a copy of the Issuer Repurchase Notice to the Trustee and the Paying Agent at such time as it is mailed to Debentureholders. In addition to the mailing of such Issuer Repurchase Notice, the Issuer shall disseminate a notice (the “Designated Event Company Notice”) of press release through Dow Xxxxx & Company, Inc. or Bloomberg Business News announcing the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing or publish such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a The Wall Street Journal or another newspaper of general circulation in The City of New York or publish the information on the CompanyGuarantor’s website website, or through such other public medium as the Company may use Issuer shall deem appropriate at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company Issuer to give the foregoing notices and no defect therein shall limit the NoteholdersDebentureholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes Debentures pursuant to this Section 14.013.05.
(c) A Designated Event Purchase Notice may For a Debenture to be withdrawn by means repurchased at the option of a written notice of withdrawal delivered the Holder pursuant to this Section 3.05(c), the Holder must deliver to the Paying Agent in accordance with the Designated Event Company Notice at any time Agent, prior to the close of business 5:00 p.m., New York City time, on the second Business Day immediately prior to the Designated Event Purchase Repurchase Date, specifying:
(i) a written notice of repurchase (the “Designated Event Repurchase Notice”) in the form set forth on the reverse of the Debenture duly completed (if certificated Notes have been issued, the Debenture is certificated) or stating the following (if the Debenture is represented by a Global Debenture): (A) the certificate numbers number of the withdrawn NotesDebenture that the Holder will deliver to be repurchased (if the Debenture is certificated) or that the relevant Designated Event Repurchase Notice complies with the appropriate Depositary procedures (if the Debenture is represented by a Global Debenture), or if not certificated, such notice must comply with appropriate procedures (B) the portion of the Depositary;
(ii) the principal amount of the Note with respect Debenture which the Holder will deliver to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Noticebe repurchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;1,000 (provided that the remaining principal amount of Debentures not subject to repurchase must be in an authorized denomination) and (C) that such Debenture shall be repurchased as of the Designated Event Repurchase Date pursuant to the terms and conditions specified in the Debenture and in this Indenture; together with (ii) such Debentures duly endorsed for transfer (if the Debenture if certificated) or book-entry transfer of such Debenture (if such Debenture is represented by a Global Debenture). The delivery of such Debenture to the Paying Agent with, or at any time after delivery of, the Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent shall be a condition to the receipt by the Holder of the repurchase price therefore; provided, however, that such repurchase price shall be so paid pursuant to this Section 3.05 only if the Debentures so delivered to the Paying Agent shall conform in all respects to the description thereof in the Repurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Debenture for repurchase shall be determined by the Issuer, whose determination shall be final and binding absent manifest error.
(d) On The Issuer, if so requested, shall repurchase from the Holder thereof, pursuant to this Section 3.05, a portion of a Debenture, if the principal amount of such portion is $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Debenture also apply to the repurchase of such portion of such Debenture.
(e) Notwithstanding the foregoing, no Debentures may be repurchased by the Issuer pursuant to this Section 3.05 if the principal amount of the Debentures has been accelerated, and such acceleration has not been rescinded or cured, on or prior to 11:00 a.m. the relevant Repurchase Date (local time except in the case of an acceleration resulting from a default by the Issuer in the payment of the repurchase price pursuant to this Section 3.05 with respect to the Debentures to be repurchased).
(f) The City of New York) on the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed shall promptly notify the Issuer of the receipt by it of any Repurchase Notice or written notice of withdrawal thereof. Any repurchase by the Company or if Issuer contemplated pursuant to the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in provisions of this Section 3.043.05 shall be consummated by the delivery of the consideration to be received by the Holder (i) an amount of money sufficient to repurchase on the Designated Event Purchase Repurchase Date all if the book-entry transfer or delivery of the Notes Debentures to be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by is effected prior to the Company), payment for Notes surrendered for repurchase (and not withdrawn) close of business on the second Business Day prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment of the Designated Event Purchase Price in Section 14.01)Repurchase Date, and (yii) if delivered later, within two (2) Business Days following the time of the book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account Debenture. Payment of the Depositary or its nominee. The Trustee shall, promptly after such payment repurchase price for a Debenture for which a Repurchase Notice has been delivered and not withdrawn is conditioned upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes)Debentures, together with necessary endorsements, to the Paying Agent.
Appears in 1 contract
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to maturity of the Notes, then each Noteholder shall have the right, at such holder’s 's option, to require the Company to repurchase all of such holder’s Notes 's Notes, or any portion thereof that is a an integral multiple of $1,000 principal amount, for cash on the date (the “"Designated Event Purchase Repurchase Date”") specified by the Company that is not less than twenty thirty (2030) days and not more than thirty-five (35) calendar days after the date of the Designated Event Company Notice (as defined belowin Section 3.05(b)) of such Designated Event at a cash repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest thereon Interest, if any, to, but excluding, the Designated Event Purchase Repurchase Date; provided that if such Designated Event Repurchase Date (unless falls after a record date and on or prior the corresponding interest payment date, then accrued and unpaid Interest, if any, to, but excluding the Designated Event Purchase Repurchase Date is between a regular record date and the corresponding Interest Payment Date to which it relates, in which case, the Company will pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to the Noteholders of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding on such interest payment date to the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental Change, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% holders of record of the consideration paid for Notes on the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists applicable record date instead of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, holders surrendering the Notes become puttable based for repurchase on the Put Value Rate determined on the basis of shares of such capital stockdate. Repurchases of Notes under this Section 14.01 3.05 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent paying agent appointed by the Company) by a holder of a duly completed notice (the “"Designated Event Purchase Repurchase Notice”") in the form set forth on the reverse of the Note on or before the Business Day prior to the close of business on the Designated Event Purchase DateExpiration Time; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent paying agent appointed by the Company) at any time after delivery of the Designated Event Purchase Repurchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent paying agent appointed by the Company) in the Borough of ManhattanManhattan as provided in Section 5.02, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price repurchase price therefor; provided that such Designated Event Purchase Price repurchase price shall be so paid pursuant to this Section 14.01 3.05 only if the Note so delivered to the Trustee (or other Paying Agent paying agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Repurchase Notice. The Designated Event Purchase Notice Company shall state:
(A) if certificatedpurchase from the holder thereof, the certificate numbers of Notes pursuant to be delivered for repurchasethis Section 3.05, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the a portion of a Note, only if the principal amount of Notes to be repurchased, which must be such portion is $1,000 or an integral a whole multiple thereof, and
(C) of $1,000. Provisions of this Indenture that the Notes are to be repurchased by the Company pursuant apply to the applicable provisions purchase of all of a Note also apply to the Notes and the Indenturepurchase of such portion of such Note. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 3.05 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Repurchase Date and the time of the book-entry transfer or delivery of the Note. Notwithstanding anything herein to the contrary, any holder delivering to the Trustee (or other paying agent appointed by the Company) the Designated Event Repurchase Notice contemplated by this Section 3.05 shall have the right to withdraw such Designated Event Repurchase Notice at any time prior to the close of business on the Designated Event Expiration Time by delivery of a written notice of withdrawal to the Trustee (or other paying agent appointed by the Company) in accordance with Section 3.05(c) below. The Trustee (or other Paying Agent paying agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrenderedthereof.
(b) On or before the tenth fifteenth day after the Effective Date occurrence of any a Designated Event, the Company or at its written request (which must be received by the Trustee at least five (5) Business Days prior to the date the Trustee is requested to give notice as described below, unless the Trustee shall provide agree in writing to a shorter period), the Trustee, in the name of and at the expense of the Company, shall mail or cause to be mailed to all holders of record on the date of the Notes and the Trustee and Paying Agent Designated Event a notice (the “"Designated Event Company Notice”") of the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing notice shall be by mailed in the manner and with the effect set forth in the first class mailparagraph of Section 3.02 (without regard for the time limits set forth therein). Simultaneously with providing If the Company shall give such notice, the Company shall also deliver a copy of the Designated Event Notice to the Trustee at such time as it is mailed to Noteholders. Concurrently with the mailing of any Designated Event Notice, the Company shall issue a press release containing this informationannouncing such Designated Event referred to in the Designated Event Notice, publish a notice containing this information in a newspaper the form and content of general circulation in The City of New York or publish the information on the Company’s website or through such other public medium as which press release shall be determined by the Company in its sole discretion. The failure to issue any such press release or any defect therein shall not affect the validity of the Designated Event Notice or any proceedings for the repurchase of any Note which any Noteholder may use at that timeelect to have the Company repurchase as provided in this Section 3.05. Each Designated Event Company Notice shall specify:
(i) specify the events causing circumstances constituting the Designated Event, the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) Repurchase Date, the date of the Designated Event;
(iii) the last date on price at which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect shall be obligated to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) repurchase Notes, that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to immediately preceding the Designated Event Purchase Repurchase Date (the “"Designated Event Expiration Time”");
(x) , that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) a description of the procedures that holders procedure which a Noteholder must follow to require exercise such repurchase right and to withdraw any surrendered Notes, the Company place or places where the holder is to repurchase their surrender such holder's Notes, the amount of Interest accrued on each Note to the Designated Event Repurchase Date and the CUSIP number or numbers of the Notes (if then generally in use) and include a form of Designated Event Repurchase Notice. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ ' repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.013.05.
(c) A Designated Event Purchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Designated Event Company Notice at any time prior to the close of business on the Business Day prior to the Designated Event Purchase Date, specifying:
(i) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(ii) the principal amount of the Note with respect to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money sufficient to repurchase on the Designated Event Purchase Date all of the Notes to be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment of the Designated Event Purchase Price in Section 14.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes).
Appears in 1 contract
Samples: Indenture (Headwaters Inc)
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to maturity of the Notes, then each Noteholder shall have the right, at such holderHolder’s option, to require the Company to repurchase all of such holderHolder’s Notes Notes, or any portion thereof that is a an integral multiple of $1,000 principal amount, for cash in cash, on the a date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less Company, which may be no earlier than twenty fifteen (2015) days and not more no later than thirty-five thirty (3530) calendar days after the date of the Company Repurchase Notice related to such Designated Event Company Notice (as defined below) Event, at a repurchase price equal to 100% of the principal amount thereofof the Notes being repurchased, together with plus accrued and unpaid interest thereon to, but excluding, the Designated Event Purchase Date (unless Repurchase Date; provided, however, that if the Designated Event Purchase Repurchase Date is between falls after a regular record date Record Date and on or prior to the corresponding Interest Payment Date to which it relates, in which caseinterest payment date, the Company will pay the full amount of accrued and unpaid interest payable interest, if any, on such Interest Payment Date interest payment date to the Noteholders Holder of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental ChangeRecord Date, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or repurchase price will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion 100% of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth calendar day after the Effective Date occurrence of any a Designated Event, the Company shall provide mail or cause to be mailed (or sent by electronic transmission) to all holders Holders of record on the date of the Notes Designated Event (and to beneficial owners as required by applicable law) a Company Repurchase Notice as set forth in Section 3.03 with respect to such Designated Event. The Company shall also deliver a copy of the Company Repurchase Notice to the Trustee and the Paying Agent at such time as it is mailed to Noteholders. In addition to the mailing of such Company Repurchase Notice, the Company shall disseminate a notice (the “Designated Event Company Notice”) of press release through Dow Xxxxx & Company, Inc. or Bloomberg Business News announcing the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing or publish such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a The Wall Street Journal or another newspaper of general circulation in The City of New York or publish the information on the Company’s website website, or through such other public medium as the Company may use shall deem appropriate at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.013.02.
(c) A Designated Event Purchase Notice may For a Note to be withdrawn by means repurchased at the option of a written notice of withdrawal delivered the Holder pursuant to this Section 3.02, the Holder must deliver to the Paying Agent in accordance with the Designated Event Company Notice at any time Agent, prior to the close of business 5:00 p.m., New York City time, on the second Business Day immediately prior to the Designated Event Purchase Repurchase Date, specifying:
(i) a written notice of repurchase (the “Designated Event Repurchase Notice”) in the form set forth on the reverse of the Note duly completed (if certificated Notes have been issued, the Note is certificated) or stating the following (if the Note is represented by a Global Note): (A) the certificate numbers number of the withdrawn NotesNote that the Holder will deliver to be repurchased (if the Note is certificated) or that the relevant Designated Event Repurchase Notice complies with the appropriate Depositary procedures (if the Note is represented by a Global Note), or if not certificated, such notice must comply with appropriate procedures (B) the portion of the Depositary;
(ii) the principal amount of the Note with respect which the Holder will deliver to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Noticebe repurchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
1,000 (d) On or prior to 11:00 a.m. (local time in The City of New York) on provided that the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an remaining principal amount of money sufficient Notes held by such Holder that are not subject to repurchase on the Designated Event Purchase Date all of the Notes to must be in an authorized denomination) and (C) that such Note shall be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment as of the Designated Event Purchase Price Repurchase Date pursuant to the terms and conditions specified in Section 14.01), the Note and in this Indenture; together with (yii) such Notes duly endorsed for transfer (if the time of Note is certificated) or book-entry transfer or the of such Note (if such Note is represented by a Global Note). The delivery of such Note to the Trustee (or other Paying Agent appointed with, or at any time after delivery of, the Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent shall be a condition to the receipt by the Company) by Holder of the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, repurchase price therefore; provided, however, that payments such repurchase price shall be so paid pursuant to this Section 3.02 only if the Notes so delivered to the Depositary Paying Agent shall conform in all respects to the description thereof in the Repurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand determined by the Company, return whose determination shall be final and binding absent any manifest error.
(d) The Company, if so requested, shall repurchase from the Holder thereof, pursuant to this Section 3.02, a portion of a Note, if the principal amount of such portion is $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to the Company any funds in excess repurchase of all of a Note also apply to the Designated Event Purchase Pricerepurchase of such portion of such Note.
(e) If Notwithstanding the Trustee (or other Paying Agent appointed foregoing, no Notes may be repurchased by the Company) holds money sufficient Company pursuant to repurchase on this Section 3.02 if the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer principal amount of the Notes has been made accelerated, and such acceleration has not been rescinded or cured, on or prior to the relevant Designated Event Repurchase Date (except in the case of an acceleration resulting from a default by the Company in the payment of the repurchase price pursuant to this Section 3.02 with respect to the Notes have been delivered to be repurchased).
(f) The Paying Agent shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof. Any repurchase by the Company contemplated pursuant to the Trustee provisions of this Section 3.02 shall be consummated by the delivery of the consideration to be received by the Holder (i) on the Designated Event Repurchase Date if the book-entry transfer or delivery of the Notes to the Paying Agent); Agent is effected prior to 5:00 p.m., New York City time, on the second Business Day prior to the Designated Event Repurchase Date, and (ii) all other rights if delivered later, within two (2) Business Days following the time of the holders book-entry transfer or delivery of such Notes will terminate (other than the right to receive Note. Payment of the repurchase price for a Note for which a Designated Event Purchase Price Repurchase Notice has been delivered and not withdrawn is conditioned upon book-entry transfer or delivery of the Notes), together with necessary endorsements, to the Paying Agent.
Appears in 1 contract
Samples: Indenture (GLG Partners, Inc.)
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to maturity of the Debentures, then each Noteholder Debentureholder shall have the right, at such holder’s 's option, to require the Company to repurchase all of such holder’s Notes 's Debentures, or any portion thereof that is a multiple of $1,000 principal amount, for cash on the a date (the “Designated Event Purchase Date”) specified designated by the Company (the "DESIGNATED EVENT REPURCHASE DATE") that is not less than twenty (20) days and not nor more than thirty-five (35) calendar days Business Days after the date of the Designated Event Company Notice (as defined belowin Section 3.05(b)) for such Designated Event (or, if such day is not a Business Day, the next succeeding Business Day) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest thereon Interest to, but excluding, the Designated Event Purchase Date (unless Repurchase Date, payable in cash, plus in the event the Designated Event Purchase occurs on or prior to November 20, 2011 and is (A) an event described in clause (1) or (2) of the definition of "Fundamental Change" or (B) a Termination of Trading, a Make-Whole Premium (if any) payable in shares of Common Stock (or certain other consideration as described in Article 18) determined as set forth in Article 18. If such Designated Event Repurchase Date is between falls after a regular record date and on or prior to the corresponding interest payment date, then the Interest Payment Date to which it relates, in which case, the Company will pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to the Noteholders of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company interest payment date shall be paid in cash. However, notwithstanding to the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental Change, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% holders of record of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based Debentures on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option applicable record date instead of the holder thereof, upon:
(i) delivery to holders surrendering the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered Debentures for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth 20th day after the Effective Date occurrence of any a Designated Event, the Company or at its written request (which must be received by the Trustee at least five (5) Business Days prior to the date the Trustee is requested to give notice as described below, unless the Trustee shall provide agree in writing to a shorter period), the Trustee, in the name of and at the expense of the Company, shall mail or cause to be mailed to all holders of record on the date of the Notes and the Trustee and Paying Agent Designated Event a notice (the “Designated Event Company Notice”"DESIGNATED EVENT NOTICE") of the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing notice shall be by mailed in the manner and with the effect set forth in the first class mailparagraph of Section 3.02 (without regard for the time limits set forth therein). Simultaneously with providing If the Company shall give such notice, the Company shall also deliver a copy of the Designated Event Notice to the Trustee at such time as it is mailed to Debentureholders. Concurrently with the mailing of any Designated Event Notice, the Company shall issue a press release containing this informationannouncing such Designated Event referred to in the Designated Event Notice, the form and content of which press release shall be determined by the Company in its sole discretion, or (at the Company's sole election) the Company may publish a notice containing this information in a newspaper of general circulation in The City of New York or publish the such information on the Company’s its website or through such other public medium as the Company may shall use at such time. The failure to issue any such press release or otherwise publish such information or any defect therein shall not affect the validity of the Designated Event Notice or any proceedings for the repurchase of any Debenture that timeany Debentureholder may elect to have the Company repurchase as provided in this Section 3.05. Each Designated Event Company Notice shall specify:
(i) specify the events causing circumstances constituting the Designated Event, the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) Repurchase Date, the date of the Designated Event;
(iii) the last date on price at which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect shall be obligated to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) repurchase Debentures, that the holder must exercise the repurchase right on or prior to the close of business 5:00 p.m., New York City time, on the Business Day prior to the Designated Event Purchase Repurchase Date (the “Designated Event Expiration Time”"DESIGNATED EVENT EXPIRATION TIME");
(x) , that the holder shall have the right to withdraw any Notes Debentures surrendered prior to the Designated Event Expiration Time, and
(xi) if the procedures Debentures are then convertible, that holders Debentures as to which an Option to Elect Repurchase Upon a Designated Event has been given may be converted only if the Option to Elect Repurchase Upon a Designated Event is withdrawn in accordance with the terms of this Indenture, a description of the procedure that a Debentureholder must follow to require exercise such repurchase right and to withdraw any surrendered Debentures, the Company place or places where the holder is to repurchase their Notessurrender such holder's Debentures, the amount of Interest accrued and unpaid on each Debenture to the Designated Event Repurchase Date and the CUSIP number or numbers of the Debentures (if then generally in use). No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ Debentureholders' repurchase rights or affect the validity of the proceedings for the repurchase of the Notes Debentures pursuant to this Section 14.013.05.
(c) A Designated Event Purchase Notice may Repurchases of Debentures under this Section 3.05 shall be withdrawn made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other paying agent appointed by means the Company) by a holder of a written duly completed and executed notice of withdrawal delivered to (the Paying Agent "OPTION TO ELECT REPURCHASE UPON A DESIGNATED EVENT") in accordance with the Designated Event Company Notice at any time prior to the close of business form set forth on the Business Day reverse of the Debenture prior to the Designated Event Purchase Date, specifying:
(i) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, or if not certificated, such notice must comply with appropriate procedures of the Depositary;Expiration Time; and
(ii) the principal amount delivery or book-entry transfer of the Note with respect Debentures to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent paying agent appointed by the Company Company) at any time simultaneous with or if after delivery of the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money sufficient Option to repurchase on the Elect Repurchase Upon a Designated Event Purchase Date (together with all of the Notes to be repurchased on such date necessary endorsements) at the Designated Event Purchase Price. Subject to receipt Corporate Trust Office of funds and/or Notes by the Trustee (or other Paying Agent paying agent appointed by the Company)) in the Borough of Manhattan as provided in Section 6.02, payment such delivery being a condition to receipt by the holder of the repurchase price therefor; provided that such repurchase price shall be so paid pursuant to this Section 3.05 only if the Debenture so delivered to the Trustee (or other paying agent appointed by the Company) shall conform in all respects to the description thereof in the related Option to Elect Repurchase Upon a Designated Event. The Company shall purchase from the holder thereof, pursuant to this Section 3.05, a portion of a Debenture, if the principal amount of such portion is $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to the purchase of all of a Debenture also apply to the purchase of such portion of such Debenture. Upon presentation of any Debenture repurchased in part only, the Company shall execute and, upon the Company's written direction to the Trustee, the Trustee shall authenticate and make available for Notes surrendered for repurchase delivery to the holder thereof, at the expense of the Company, a new Debenture or Debentures, of authorized denominations, in aggregate principal amount equal to the unredeemed portion of the Debentures presented. Notwithstanding anything herein to the contrary, any holder delivering to the Trustee (and not withdrawnor other paying agent appointed by the Company) the Option to Elect Repurchase Upon a Designated Event contemplated by this Section 3.05 shall have the right to withdraw such Option to Elect Repurchase Upon a Designated Event at any time prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment of the Designated Event Purchase Price in Section 14.01), and (y) the time of book-entry transfer or the by delivery of such Note a written notice of withdrawal to the Trustee (or other Paying Agent paying agent appointed by the Company) in accordance with Section 3.05(d) below. Debentures in respect of which an Option to Elect Repurchase Upon a Designated Event has been given by the holder thereof in may not be converted pursuant to Article 17 hereof on or after the manner required by Section 14.01 by mailing checks for date of the amount payable to the holders delivery of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments Option to the Depositary shall be made by wire transfer of immediately available funds Elect Repurchase Upon a Designated Event unless such Option to the account of the Depositary or its nomineeElect Repurchase Upon a Designated Event has first been validly withdrawn. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent paying agent appointed by the Company) holds money sufficient shall promptly notify the Company of the receipt by it of any Option to repurchase Elect Repurchase Upon a Designated Event or written notice of withdrawal thereof. For a Debenture, other than a Global Debenture to be so repurchased at the option of the holder, the Company must receive at the office or agency of the Company maintained for that purpose or, at the option of such holder, the Corporate Trust Office, such Debenture with the form entitled "Option to Elect Repurchase Upon a Designated Event" on the reverse thereof duly completed, together with such Debentures duly endorsed for transfer, on or before the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased Expiration Time. All questions as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); validity, eligibility (including time of receipt) and (ii) all other rights acceptance of any Debenture for repurchase shall be determined by the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes)Company, whose determination shall be final and binding absent manifest error.
Appears in 1 contract
Samples: Indenture (Gencorp Inc)
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to the Maturity Date, then each Noteholder shall have the right, at such holderHolder’s option, to require the Company Issuer to repurchase all of such holderHolder’s Notes Notes, or any portion thereof that is a multiple of $1,000 principal amount, for cash in cash, on the a date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less Issuer, which may be no earlier than twenty fifteen (2015) days and not more no later than thirty-five thirty (3530) calendar days after the date of the Issuer Repurchase Notice related to such Designated Event Company Notice (as defined below) Event, at a repurchase price equal to 100% of the principal amount thereofof the Notes being repurchased, together with plus accrued and unpaid interest thereon to, but excluding, the Designated Event Purchase Repurchase Date (unless the “Repurchase Price”); provided, however, that if the Designated Event Purchase Repurchase Date is between falls after a regular record date Record Date and on or prior to the corresponding Interest Payment Date to which it relates, in which caseinterest payment date, the Company will Issuer shall pay the full amount of accrued and unpaid interest payable interest, if any, on such Interest Payment Date interest payment date to the Noteholders Holder of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental ChangeRecord Date, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or Repurchase Price will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion 100% of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth calendar day after the Effective Date occurrence of any a Designated Event, the Company Issuer shall provide give or cause to be given to all holders Holders of record on the date of the Notes Designated Event (and to beneficial owners as required by applicable law) an Issuer Repurchase Notice as set forth in Section 3.06 with respect to such Designated Event. The Issuer shall also deliver a copy of the Issuer Repurchase Notice to the Trustee, Exchange Agent and the Trustee and Paying Agent at such time as it is given to Noteholders. In addition to the giving of such Issuer Repurchase Notice, the Issuer shall disseminate a notice (the “Designated Event Company Notice”) of press release through Dow Xxxxx & Company, Inc. or Bloomberg Business News announcing the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing or publish such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a The Wall Street Journal or another newspaper of general circulation in The City of New York or publish the information on the Company’s website website, or through such other public medium as the Company may use Issuer shall deem appropriate at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company Issuer to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.013.05.
(c) A Designated Event Purchase Notice may For a Note to be withdrawn by means repurchased at the option of a written notice of withdrawal delivered the Holder pursuant to this Section 3.05(c), the Holder must deliver to the Paying Agent in accordance with the Designated Event Company Notice at any time Agent, prior to the close of business on the second Business Day immediately prior to the Designated Event Purchase Repurchase Date, specifying:
(i) a written notice of repurchase (the “Designated Event Repurchase Notice”) in the form set forth on the reverse of the Note duly completed specifying (A) (if certificated Notes have been issued, the Note is certificated) the certificate numbers number of the withdrawn NotesNote that the Holder will deliver to be repurchased or (if the Note is represented by a Global Note) that the relevant Designated Event Repurchase Notice complies with the appropriate Depositary procedures, or if not certificated, such notice must comply with appropriate procedures (B) the portion of the Depositary;
(ii) the principal amount of the Note with respect which the Holder will deliver to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Noticebe repurchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;1,000 (provided that the remaining principal amount of Notes not subject to repurchase must be in an authorized denomination) and (C) that such Note shall be repurchased as of the Designated Event Repurchase Date pursuant to the terms and conditions specified in the Note and in this Indenture; together with (ii) such Notes duly endorsed for transfer (if the Note if certificated) or book-entry transfer of such Note (if such Note is represented by a Global Note). The delivery of such Note to the Paying Agent with, or at any time after delivery of, the Designated Event Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent shall be a condition to the receipt by the Holder of the Repurchase Price therefore; provided, however, that such Repurchase Price shall be so paid pursuant to this Section 3.05 only if the Notes so delivered to the Paying Agent shall conform in all respects to the description thereof in the Designated Event Repurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Issuer, whose determination shall be final and binding absent manifest error, and the Trustee may rely and shall be fully protected in relying on such determination by the Issuer.
(d) On The Issuer, if so requested, shall repurchase from the Holder thereof, pursuant to this Section 3.05, a portion of a Note, if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of such portion of such Note.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Issuer pursuant to this Section 3.05 if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded or cured, on or prior to 11:00 a.m. the relevant Repurchase Date (local time except in The City the case of New York) on the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed an acceleration resulting from a default by the Company or if Issuer in the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in payment of the Repurchase Price pursuant to this Section 3.04) an amount of money sufficient 3.05 with respect to repurchase on the Designated Event Purchase Date all of the Notes to be repurchased on such date at repurchased).
(f) The Paying Agent shall promptly notify the Issuer of the receipt by it of any Designated Event Purchase PriceRepurchase Notice or written notice of withdrawal thereof. Subject to receipt of funds and/or Notes Any repurchase by the Trustee (or other Paying Agent appointed Issuer contemplated pursuant to the provisions of this Section 3.05 shall be consummated by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior delivery of the consideration to be received by the Designated Event Expiration Time will be made promptly after Holder on the later of (x) two (2) Business Days following the time of book-entry transfer or delivery of such Note to the Paying Agent by the Holder thereof in the manner required by this Section 3.05 and (y) the Designated Event Purchase Repurchase Date with respect to such Note (provided the holder Holder has satisfied the conditions to in this Section 3.05). Payment of the payment of Repurchase Price on the Designated Event Purchase Price in Section 14.01), Repurchase Date for a Note for which a Designated Event Repurchase Notice has been delivered and (y) the time of not withdrawn is conditioned upon book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes), together with necessary endorsements, to the Paying Agent prior to the close of business on the second Business Day prior to the Designated Event Repurchase Date.
Appears in 1 contract
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to maturity of the Notes, then each Noteholder shall have the right, at such holderHolder’s option, to require the Company Issuer to repurchase all of such holderHolder’s Notes Notes, or any portion thereof that is a an integral multiple of $1,000 principal amount, for cash in cash, on the a date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less Issuer, which may be no earlier than twenty fifteen (2015) days and not more no later than thirty-five thirty (3530) calendar days after the date of the Issuer Repurchase Notice related to such Designated Event Company Notice (as defined below) Event, at a repurchase price equal to 100% of the principal amount thereofof the Notes being repurchased, together with plus accrued and unpaid interest thereon to, but excluding, the Designated Event Purchase Date (unless Repurchase Date; provided, however, that if the Designated Event Purchase Repurchase Date is between falls after a regular record date Record Date and on or prior to the corresponding Interest Payment Date to which it relates, in which caseinterest payment date, the Company Issuer will pay the full amount of accrued and unpaid interest payable interest, if any, on such Interest Payment Date interest payment date to the Noteholders Holder of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental ChangeRecord Date, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or repurchase price will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion 100% of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth calendar day after the Effective Date occurrence of any a Designated Event, the Company Issuer shall provide deliver or cause to be delivered to all holders Holders of record on the date of the Notes Designated Event (and to beneficial owners as required by applicable law) an Issuer Repurchase Notice as set forth in Section 3.07 with respect to such Designated Event. The Issuer shall also deliver a copy of the Issuer Repurchase Notice to the Trustee and the Paying Agent at such time as it is delivered to Noteholders. In addition to the delivery of such Issuer Repurchase Notice, the Issuer shall disseminate a notice (the “Designated Event Company Notice”) of press release through Dow Xxxxx & Company, Inc. or Bloomberg Business News announcing the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing or publish such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a The Wall Street Journal or another newspaper of general circulation in The City of New York or publish the information on the CompanyGuarantor’s website web site, or through such other public medium as the Company may use Issuer shall deem appropriate at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company Issuer to give the foregoing notices and no defect therein shall limit the Noteholders’ Noteholder’s repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.013.05.
(c) A Designated Event Purchase Notice may For a Note to be withdrawn by means repurchased at the option of a written notice of withdrawal delivered the Holder pursuant to this Section 3.05(c), the Holder must deliver to the Paying Agent in accordance with the Designated Event Company Notice at any time Agent, prior to the close of business 5:00 p.m., New York City time, on the second Business Day immediately prior to the Designated Event Purchase Repurchase Date, specifying:
(i) a written notice of repurchase (the “Designated Event Repurchase Notice”) in the form set forth on the reverse of the Note duly completed (if certificated Notes have been issued, the Note is certificated) or stating the following (if the Note is represented by a Global Note): (A) the certificate numbers number of the withdrawn NotesNote that the Holder will deliver to be repurchased (if the Note is certificated) or that the relevant Designated Event Repurchase Notice complies with the appropriate Depositary procedures (if the Note is represented by a Global Note), or if not certificated, such notice must comply with appropriate procedures (B) the portion of the Depositary;
(ii) the principal amount of the Note with respect which the Holder will deliver to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Noticebe repurchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
1,000 (d) On or prior to 11:00 a.m. (local time in The City of New York) on provided that the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an remaining principal amount of money sufficient Notes not subject to repurchase on the Designated Event Purchase Date all must be in an integral multiple of the Notes to $1,000) and (C) that such Note shall be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment as of the Designated Event Purchase Price Repurchase Date pursuant to the terms and conditions specified in Section 14.01), the Note and in this Indenture; together with (yii) such Notes duly endorsed for transfer (if the time of Note if certificated) or book-entry transfer or the of such Note (if such Note is represented by a Global Note). The delivery of such Note to the Trustee (or other Paying Agent appointed with, or at any time after delivery of, the Designated Event Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent shall be a condition to the receipt by the Company) by Holder of the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, repurchase price therefore; provided, however, that payments such repurchase price shall be so paid pursuant to this Section 3.05 only if the Notes so delivered to the Depositary Paying Agent shall be made by wire transfer of immediately available funds conform in all respects to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds description thereof in excess of the Designated Event Purchase PriceRepurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Issuer, whose determination shall be final and binding absent manifest error.
(d) The Issuer, if so requested, shall repurchase from the Holder thereof, pursuant to this Section 3.05, a portion of a Note, if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of such portion of such Note.
(e) If Notwithstanding the Trustee (or other Paying Agent appointed foregoing, no Notes may be repurchased by the Company) holds money sufficient Issuer pursuant to repurchase on this Section 3.05 if the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer principal amount of the Notes has been made accelerated, and such acceleration has not been rescinded or cured, on or prior to the relevant Designated Event Repurchase Date (except in the case of an acceleration resulting from a default by the Issuer in the payment of the repurchase price pursuant to this Section 3.05 with respect to the Notes have been delivered to be repurchased).
(f) The Paying Agent shall promptly notify the Issuer of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof.
(g) The Issuer may arrange for a third party to purchase any Notes (provided that the Trustee is so notified by Issuer promptly) for which the Issuer receives a valid Designated Event Repurchase Notice that is not withdrawn, in the manner and otherwise in compliance with the requirements set forth herein. If a third party purchases any Notes under these circumstances, interest will continue to accrue on those Notes and such Notes will continue to be outstanding after the Designated Event Repurchase Date. The third party subsequently may resell such purchased Notes to other investors. Any repurchase by the Issuer contemplated pursuant to the Trustee provisions of this Section 3.05 shall be consummated by the delivery of the consideration to be received by the Holder (i) on the Designated Event Repurchase Date if the book-entry transfer or delivery of the Notes to the Paying Agent); Agent is effected prior to the close of business on the second Business Day prior to the Designated Event Repurchase Date, and (ii) all other rights if delivered later, within two (2) Business Days following the time of the holders book-entry transfer or delivery of such Notes will terminate (other than the right to receive Note. Payment of the repurchase price for a Note for which a Designated Event Purchase Price Repurchase Notice has been delivered and not withdrawn is conditioned upon book-entry transfer or delivery of the Notes), together with necessary endorsements, to the Paying Agent.
Appears in 1 contract
Samples: Indenture (Extra Space Storage Inc.)
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to the Maturity Date, then each Noteholder shall have the right, at such holderHolder’s option, to require the Company Issuer to repurchase all of such holderHolder’s Notes Notes, or any portion thereof that is a multiple of $1,000 principal amount, for cash in cash, on the a date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less Issuer, which may be no earlier than twenty fifteen (2015) days and not more no later than thirty-five thirty (3530) calendar days after the date of the Issuer Repurchase Notice related to such Designated Event Company Notice (as defined below) Event, at a repurchase price equal to 100% of the principal amount thereofof the Notes being repurchased, together with plus accrued and unpaid interest thereon to, but excluding, the Designated Event Purchase Date (unless Repurchase Date; provided, however, that if the Designated Event Purchase Repurchase Date is between falls after a regular record date Record Date and on or prior to the corresponding Interest Payment Date to which it relates, in which caseinterest payment date, the Company will Issuer shall pay the full amount of accrued and unpaid interest payable interest, if any, on such Interest Payment Date interest payment date to the Noteholders Holder of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental ChangeRecord Date, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or repurchase price will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion 100% of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth calendar day after the Effective Date occurrence of any a Designated Event, the Company Issuer shall provide give or cause to be given to all holders Holders of record on the date of the Notes Designated Event (and to beneficial owners as required by applicable law) an Issuer Repurchase Notice as set forth in Section 3.07 with respect to such Designated Event. The Issuer shall also deliver a copy of the Issuer Repurchase Notice to the Trustee and the Paying Agent at such time as it is given to Noteholders. In addition to the giving of such Issuer Repurchase Notice, the Issuer shall disseminate a notice (the “Designated Event Company Notice”) of press release through Dow Jxxxx & Company, Inc. or Bloomberg Business News announcing the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing or publish such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a The Wall Street Journal or another newspaper of general circulation in The City of New York or publish the information on the CompanyGuarantor’s website website, or through such other public medium as the Company may use Issuer shall deem appropriate at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company Issuer to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.013.05.
(c) A Designated Event Purchase Notice may For a Note to be withdrawn by means repurchased at the option of a written notice of withdrawal delivered the Holder pursuant to this Section 3.05(c), the Holder must deliver to the Paying Agent in accordance with the Designated Event Company Notice at any time Agent, prior to the close of business on the second Business Day immediately prior to the Designated Event Purchase Repurchase Date, specifying:
(i) a written notice of repurchase (the “Designated Event Repurchase Notice”) in the form set forth on the reverse of the Note duly completed (if certificated Notes have been issued, the Note is certificated) or stating the following (if the Note is represented by a Global Note): (A) the certificate numbers number of the withdrawn NotesNote that the Holder will deliver to be repurchased (if the Note is certificated) or that the relevant Designated Event Repurchase Notice complies with the appropriate Depositary procedures (if the Note is represented by a Global Note), or if not certificated, such notice must comply with appropriate procedures (B) the portion of the Depositary;
(ii) the principal amount of the Note with respect which the Holder will deliver to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Noticebe repurchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
1,000 (d) On or prior to 11:00 a.m. (local time in The City of New York) on provided that the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an remaining principal amount of money sufficient Notes not subject to repurchase on the Designated Event Purchase Date all of the Notes to must be in an authorized denomination) and (C) that such Note shall be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment as of the Designated Event Purchase Price Repurchase Date pursuant to the terms and conditions specified in Section 14.01), the Note and in this Indenture; together with (yii) such Notes duly endorsed for transfer (if the time of Note if certificated) or book-entry transfer or the of such Note (if such Note is represented by a Global Note). The delivery of such Note to the Trustee (or other Paying Agent appointed with, or at any time after delivery of, the Designated Event Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent shall be a condition to the receipt by the Company) by Holder of the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, repurchase price therefore; provided, however, that payments such repurchase price shall be so paid pursuant to this Section 3.05 only if the Notes so delivered to the Depositary Paying Agent shall be made by wire transfer of immediately available funds conform in all respects to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds description thereof in excess of the Designated Event Purchase PriceRepurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Issuer, whose determination shall be final and binding absent manifest error.
(d) The Issuer, if so requested, shall repurchase from the Holder thereof, pursuant to this Section 3.05, a portion of a Note, if the principal amount of such portion is $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of such portion of such Note.
(e) If Notwithstanding the Trustee (or other Paying Agent appointed foregoing, no Notes may be repurchased by the Company) holds money sufficient Issuer pursuant to repurchase on this Section 3.05 if the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer principal amount of the Notes has been made accelerated, and such acceleration has not been rescinded or cured, on or prior to the relevant Repurchase Date (except in the case of an acceleration resulting from a default by the Issuer in the payment of the repurchase price pursuant to this Section 3.05 with respect to the Notes have been delivered to be repurchased).
(f) The Paying Agent shall promptly notify the Issuer of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof. Any repurchase by the Issuer contemplated pursuant to the Trustee provisions of this Section 3.05 shall be consummated by the delivery of the consideration to be received by the Holder (i) on the Designated Event Repurchase Date if the book-entry transfer or delivery of the Notes to the Paying Agent); Agent is effected prior to the close of business on the second Business Day prior to the Designated Event Repurchase Date, and (ii) all other rights if delivered later, within two (2) Business Days following the time of the holders book-entry transfer or delivery of such Notes will terminate (other than the right to receive Note. Payment of the repurchase price for a Note for which a Designated Event Purchase Price Repurchase Notice has been delivered and not withdrawn is conditioned upon book-entry transfer or delivery of the Notes), together with necessary endorsements, to the Paying Agent.
Appears in 1 contract
Samples: Indenture (First Industrial Lp)
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to the Maturity Date, then each Noteholder shall have the right, at such holderHolder’s option, to require the Company Issuer to repurchase all of such holderHolder’s Notes Notes, or any portion thereof that is a multiple of $1,000 principal amount, for cash in cash, on the a date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less Issuer, which shall be no earlier than twenty fifteen (2015) calendar days and not more no later than thirty-five (35) calendar days after the date of the Issuer Repurchase Notice related to such Designated Event Company Notice (as defined below) Event, at a repurchase price equal to 100% of the principal amount thereofof the Notes being repurchased, together with plus accrued and unpaid interest thereon Interest to, but excluding, the Designated Event Purchase Date (unless Repurchase Date; provided, however, that if the Designated Event Purchase Repurchase Date is between falls after a regular record date Record Date and on or prior to the corresponding Interest Payment Date to which it relates, in which caseDate, the Company will Issuer shall pay the full amount of accrued and unpaid interest payable Interest, if any, on such Interest Payment Date to the Noteholders Holder of record at the close Close of business Business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental ChangeRecord Date, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or repurchase price will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion 100% of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth calendar day after the Effective Date occurrence of any a Designated Event, the Company Issuer shall provide give or cause to be given to all holders Holders of record on the date of the Notes Designated Event (and to beneficial owners as required by applicable law) an Issuer Repurchase Notice as set forth in Section 3.06 with respect to such Designated Event. The Issuer shall also deliver a copy of the Issuer Repurchase Notice to the Trustee and the Paying Agent at such time as it is given to Noteholders. In addition to the giving of such Issuer Repurchase Notice, the Issuer shall disseminate a notice (the “Designated Event Company Notice”) of press release through Dow Xxxxx & Company, Inc. or Bloomberg Business News announcing the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing or publish such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a The Wall Street Journal or another newspaper of general circulation in The the City of New York or publish the information on the CompanyGuarantor’s website website, or through such other public medium as the Company may use Issuer shall deem appropriate at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company Issuer to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.013.05.
(c) A For a Note to be repurchased at the option of the Holder pursuant to this Section 3.05(c), the Holder must deliver to the Paying Agent, prior to the Close of Business on the second Business Day immediately preceding the Designated Event Purchase Notice may be withdrawn by means of Repurchase Date, (i) a written notice of withdrawal delivered repurchase (the “Designated Event Repurchase Notice”) in the form set forth on the reverse of the Note duly completed (if the Note is certificated) or stating the following (if the Note is represented by a Global Note): (A) the certificate number of the Note that the Holder will deliver to be repurchased (if the Paying Agent in accordance Note is certificated) or that the relevant Designated Event Repurchase Notice complies with the Designated Event Company Notice at any time prior to appropriate Depositary procedures (if the close Note is represented by a Global Note), (B) the portion of business on the Business Day prior to the Designated Event Purchase Date, specifying:
(i) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(ii) the principal amount of the Note with respect which the Holder will deliver to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Noticebe repurchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
1,000 (d) On or prior to 11:00 a.m. (local time in The City of New York) on provided that the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an remaining principal amount of money sufficient Notes not subject to repurchase on the Designated Event Purchase Date all of the Notes to must be in an authorized denomination) and (C) that such Note shall be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment as of the Designated Event Purchase Price Repurchase Date pursuant to the terms and conditions specified in Section 14.01), the Note and in this Indenture; together with (yii) such Notes duly endorsed for transfer (if the time of Note if certificated) or book-entry transfer or the of such Note (if such Note is represented by a Global Note). The delivery of such Note to the Trustee (or other Paying Agent appointed with, or at any time after delivery of, the Designated Event Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent shall be a condition to the receipt by the Company) by Holder of the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, repurchase price therefore; provided, however, that payments such repurchase price shall be so paid pursuant to this Section 3.05 only if the Notes so delivered to the Depositary Paying Agent shall be made by wire transfer of immediately available funds conform in all respects to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds description thereof in excess of the Designated Event Purchase PriceRepurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Issuer, whose determination shall be final and binding absent manifest error.
(d) The Issuer, if so requested, shall repurchase from the Holder thereof, pursuant to this Section 3.05, a portion of a Note, if the principal amount of such portion is $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of such portion of such Note.
(e) If Notwithstanding the Trustee (or other Paying Agent appointed foregoing, no Notes may be repurchased by the Company) holds money sufficient Issuer pursuant to repurchase on this Section 3.05 if the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer principal amount of the Notes has been made accelerated, and such acceleration has not been rescinded or cured, on or prior to the relevant Designated Event Repurchase Date (except in the case of an acceleration resulting from a default by the Issuer in the payment of the repurchase price pursuant to this Section 3.05 with respect to the Notes have been delivered to be repurchased).
(f) The Paying Agent shall promptly notify the Issuer of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof. Any repurchase by the Issuer contemplated pursuant to the Trustee provisions of this Section 3.05 shall be consummated by the delivery of the consideration to be received by the Holder (i) on the Designated Event Repurchase Date if the book-entry transfer or delivery of the Notes to the Paying Agent); Agent is effected prior to the Close of Business on the second Business Day immediately prior to the Designated Event Repurchase Date, and (ii) all other rights if delivered later, within two (2) Business Days following the time of the holders book-entry transfer or delivery of such Notes will terminate (other than the right to receive Note. Payment of the repurchase price for a Note for which a Designated Event Purchase Price Repurchase Notice has been delivered and not withdrawn is conditioned upon book-entry transfer in compliance with applicable Depositary procedures or delivery of the Notes), together with necessary endorsements, to the Paying Agent.
Appears in 1 contract
Samples: Indenture (Kilroy Realty Corp)
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to the Maturity Date, then each Noteholder shall have the right, at such holderHolder’s option, to require the Company Issuer to repurchase all of such holderHolder’s Notes Notes, or any portion thereof that is a multiple of $1,000 principal amount, for cash in cash, on the a date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less Issuer, which shall be no earlier than twenty fifteen (2015) calendar days and not more no later than thirty-five (35) calendar days after the date of the Issuer Repurchase Notice related to such Designated Event Company Notice (as defined below) Event, at a repurchase price equal to 100% of the principal amount thereofof the Notes being repurchased, together with plus accrued and unpaid interest thereon Interest to, but excluding, the Designated Event Purchase Date (unless Repurchase Date; provided, however, that if the Designated Event Purchase Repurchase Date is between falls after a regular record date Record Date and on or prior to the corresponding Interest Payment Date to which it relates, in which caseDate, the Company will Issuer shall pay the full amount of accrued and unpaid interest payable Interest, if any, on such Interest Payment Date to the Noteholders Holder of record at the close Close of business Business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental ChangeRecord Date, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or repurchase price will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion 100% of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before Following the tenth day after the Effective Date occurrence of any a Designated Event, the Company shall provide Issuer shall, within ten calendar days after the effective date thereof, give or cause to be given to all holders Holders of record on the date of the Notes Designated Event (and to beneficial owners as required by applicable law) an Issuer Repurchase Notice as set forth in Section 3.06 with respect to such Designated Event. The Issuer shall also deliver a copy of the Issuer Repurchase Notice to the Trustee and the Paying Agent at such time as it is given to Noteholders. In addition to the giving of such Issuer Repurchase Notice, the Issuer shall disseminate a notice (the “Designated Event Company Notice”) of press release through Dow Xxxxx & Company, Inc. or Bloomberg Business News announcing the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing or publish such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a The Wall Street Journal or another newspaper of general circulation in The the City of New York or publish the information on the CompanyGuarantor’s website website, or through such other public medium as the Company may use Issuer shall deem appropriate at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company Issuer to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.013.05.
(c) A For a Note to be repurchased at the option of the Holder pursuant to this Section 3.05(c), the Holder must deliver to the Paying Agent, prior to the Close of Business on the second Business Day immediately preceding the Designated Event Purchase Notice may be withdrawn by means of Repurchase Date, (i) a written notice of withdrawal delivered repurchase (the “Designated Event Repurchase Notice”) in the form set forth on the reverse of the Note duly completed (if the Note is certificated) or stating the following (if the Note is represented by a Global Note): (A) the certificate number of the Note that the Holder will deliver to be repurchased (if the Paying Agent in accordance Note is certificated) or that the relevant Designated Event Repurchase Notice complies with the Designated Event Company Notice at any time prior to appropriate Depositary procedures (if the close Note is represented by a Global Note), (B) the portion of business on the Business Day prior to the Designated Event Purchase Date, specifying:
(i) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(ii) the principal amount of the Note with respect which the Holder will deliver to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Noticebe repurchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
1,000 (d) On or prior to 11:00 a.m. (local time in The City of New York) on provided that the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an remaining principal amount of money sufficient Notes not subject to repurchase on the Designated Event Purchase Date all of the Notes to must be in an authorized denomination) and (C) that such Note shall be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment as of the Designated Event Purchase Price Repurchase Date pursuant to the terms and conditions specified in Section 14.01), the Note and in this Indenture; together with (yii) such Notes duly endorsed for transfer (if the time of Note if certificated) or book-entry transfer or the of such Note (if such Note is represented by a Global Note). The delivery of such Note to the Trustee (or other Paying Agent appointed with, or at any time after delivery of, the Designated Event Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent shall be a condition to the receipt by the Company) by Holder of the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, repurchase price therefore; provided, however, that payments such repurchase price shall be so paid pursuant to this Section 3.05 only if the Notes so delivered to the Depositary Paying Agent shall be made by wire transfer of immediately available funds conform in all respects to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds description thereof in excess of the Designated Event Purchase PriceRepurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Issuer, whose determination shall be final and binding absent manifest error.
(d) The Issuer, if so requested, shall repurchase from the Holder thereof, pursuant to this Section 3.05, a portion of a Note, if the principal amount of such portion is $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of such portion of such Note.
(e) If Notwithstanding the Trustee (or other Paying Agent appointed foregoing, no Notes may be repurchased by the Company) holds money sufficient Issuer pursuant to repurchase on this Section 3.05 if the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer principal amount of the Notes has been made accelerated, and such acceleration has not been rescinded or cured, on or prior to the relevant Designated Event Repurchase Date (except in the case of an acceleration resulting from a default by the Issuer in the payment of the repurchase price pursuant to this Section 3.05 with respect to the Notes have been delivered to be repurchased).
(f) The Paying Agent shall promptly notify the Issuer of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof. Any repurchase by the Issuer contemplated pursuant to the Trustee provisions of this Section 3.05 shall be consummated by the delivery of the consideration to be received by the Holder (i) on the Designated Event Repurchase Date if the book-entry transfer or delivery of the Notes to the Paying Agent); Agent is effected prior to the Close of Business on the second Business Day immediately prior to the Designated Event Repurchase Date, and (ii) all other rights if delivered later, within two (2) Business Days following the time of the holders book-entry transfer or delivery of such Notes will terminate (other than the right to receive Note. Payment of the repurchase price for a Note for which a Designated Event Purchase Price Repurchase Notice has been delivered and not withdrawn is conditioned upon book-entry transfer in compliance with applicable Depositary procedures or delivery of the Notes), together with necessary endorsements, to the Paying Agent.
Appears in 1 contract
Samples: Indenture (Kilroy Realty Corp)
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to maturity of any series of Notes, then each Noteholder of such series shall have the right, at such holder’s option, to require the Company to repurchase all of such holder’s Notes Notes, or any portion thereof that is a multiple of $1,000 principal amount, for cash on the date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less than twenty (20) days Business Days and not more than thirty-five thirty (3530) calendar days Business Days after the date of the Designated Event Company Notice (as defined belowin Section 16.1(b)) of such Designated Event at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest thereon Liquidated Damages to, but excluding, the Designated Event Purchase Repurchase Date (unless the Designated Event Purchase Date is between a regular record date and the corresponding Interest Payment Date to which it relates, in which case, the Company will pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to the Noteholders of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Repurchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental Change, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 16.1 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent paying agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Repurchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the close of business on the Designated Event Purchase Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent paying agent appointed by the Company) at any time after delivery of the Designated Event Purchase Repurchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent paying agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Repurchase Price therefor; provided that such Designated Event Purchase Repurchase Price shall be so paid pursuant to this Section 14.01 16.1 only if the Note so delivered to the Trustee (or other Paying Agent paying agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Repurchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 16.1 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Repurchase Date and the time of the book-entry transfer or delivery of the Note. Notwithstanding anything herein to the contrary, any holder delivering to the Trustee (or other paying agent appointed by the Company) the Designated Event Repurchase Notice contemplated by this Section 16.1 shall have the right to withdraw such Designated Event Repurchase Notice at any time prior to the close of business on the Designated Event Repurchase Date by delivery of a written notice of withdrawal to the Trustee (or other paying agent appointed by the Company) in accordance with Section 16.1(c) below. The Trustee (or other Paying Agent paying agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrenderedthereof.
(b) On or before the tenth day after the Effective Date occurrence of any a Designated Event, the Company or, at the written request of the Company, the Trustee, shall provide mail or cause to be mailed to all holders of record of the Notes and the Trustee and Paying Agent a notice (the “Designated Event Company Notice”) of the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing such notice, the The Company shall issue also deliver a press release containing this informationcopy of the Designated Event Notice to the Trustee and cause a copy of such Designated Event Notice, publish or a notice containing this summary of the information contained therein, to be published once in a newspaper of general circulation in The City of New York or publish York. Concurrently with the information on the Company’s website or through such other public medium as mailing of any Designated Event Notice, the Company shall issue a press release announcing such Designated Event referred to in the Designated Event Notice, the form and content of which press release shall be determined by the Company in its sole discretion. The failure to issue any such press release or any defect therein shall not affect the validity of the Designated Event Notice or any proceedings for the repurchase of any Note that any Noteholder may use at that timeelect to have the Company repurchase as provided in this Section 16.1. Each Designated Event Company Notice shall specify:
(i) specify the events causing circumstances constituting the Designated Event, the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) Repurchase Date, the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Repurchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) , that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Repurchase Date (the “Designated Event Expiration Time”);
(x) , that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) a description of the procedures that holders procedure which a Noteholder must follow to require exercise such repurchase right and to withdraw any surrendered Notes, the Company place or places where the holder is to repurchase their Notessurrender such holder’s Notes and the CUSIP number or numbers of the Notes (if then generally in use) and include a form of Designated Event Repurchase Notice. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.0116.1.
(c) A Designated Event Purchase Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent Corporate Trust Office of the Trustee (or other paying agent appointed by the Company) in accordance with the Designated Event Company Repurchase Notice at any time prior to the close of business on the Business Day prior to the Designated Event Purchase Repurchase Date, specifying:
(i) if certificated Notes have been issued, the certificate numbers number, if any, of the withdrawn NotesNote in respect of which such notice of withdrawal is being submitted, or the appropriate Depositary information if not certificated, the Note in respect of which such notice must comply with appropriate procedures of the Depositary;withdrawal is being submitted is represented by a Global Security,
(ii) the principal amount of the Note with respect to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Notice, which portion must Repurchase Notice and that has been or will be delivered for purchase by the Company. A written notice of withdrawal of a Designated Event Repurchase Notice may be in principal amounts the form set forth in the preceding paragraph or may be in the form of $1,000 or an integral multiple a conditional withdrawal contained in a Designated Event Repurchase Notice pursuant to the terms of $1,000;Section 16.1(a).
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the Business Day following the Designated Event Purchase Repurchase Date, the Company will deposit with the Trustee (or other Paying Agent paying agent appointed by the Company or if the Company is acting as its own Paying Agentpaying agent, set aside, segregate and hold in trust as provided in Section 3.045.4) an amount of money sufficient to repurchase on the Designated Event Purchase Repurchase Date all of the Notes to be repurchased on such date at the appropriate Repurchase Price; provided that if such payment is made on the Designated Event Purchase PriceRepurchase Date it must be received by the Trustee or paying agent, as the case may be, by 10:00 a.m. New York City time, on such date. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent paying agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after (but in no event more than two Business Days) following the later of (x) the Designated Event Purchase Repurchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment of the Designated Event Purchase Price in Section 14.01), 16.1) and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent paying agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 16.1) by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Security Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent paying agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Repurchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Repurchase Date, then on and or after the Designated Event Purchase Repurchase Date (i) such Notes will cease to be outstanding and interest outstanding, (ii) Liquidated Damages, if any, will cease to accrue on such Notes, and (iii) all other rights of the holders of such Notes (will terminate, whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (paying agent, other than the right to receive the Designated Event Purchase Price repurchase price upon delivery of the Notes).
Appears in 1 contract
Samples: Indenture (Sepracor Inc /De/)
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to maturity of the Notes, then each Noteholder shall have the right, at such holderHolder’s option, to require the Company Issuer to repurchase all of such holderHolder’s Notes Notes, or any portion thereof that is a multiple of $1,000 principal amount, for cash in cash, on the a date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less Issuer, which may be no earlier than twenty fifteen (2015) days and not more no later than thirty-five thirty (3530) calendar days after the date of the Issuer Repurchase Notice related to such Designated Event Company Notice (as defined below) Event, at a repurchase price equal to 100% of the principal amount thereofof the Notes being repurchased, together with plus accrued and unpaid interest thereon (plus Additional Interest, if any) to, but excluding, the Designated Event Purchase Date (unless Repurchase Date; provided, however, that if the Designated Event Purchase Repurchase Date is between falls after a regular record date Record Date and on or prior to the corresponding Interest Payment Date to which it relates, in which caseinterest payment date, the Company Issuer will pay the full amount of accrued and unpaid interest payable interest, if any (plus Additional Interest, if any), on such Interest Payment Date interest payment date to the Noteholders Holder of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental ChangeRecord Date, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or repurchase price will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion 100% of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth twentieth calendar day after the Effective Date occurrence of any a Designated Event, the Company Issuer shall provide mail (or send by electronic transmission) or cause to be mailed (or sent by electronic transmission) to all holders Holders of record on the date of the Notes Designated Event (and to beneficial owners as required by applicable law) an Issuer Repurchase Notice as set forth in Section 3.07 with respect to such Designated Event. The Issuer shall also deliver a copy of the Issuer Repurchase Notice to the Trustee and the Paying Agent at such time as it is mailed to Noteholders. In addition to the mailing of such Issuer Repurchase Notice, the Issuer shall disseminate a notice (the “Designated Event Company Notice”) of press release through Dow Xxxxx & Company, Inc. or Bloomberg Business News announcing the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing or publish such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a The Wall Street Journal or another newspaper of general circulation in The City of New York or publish the information on the CompanyGuarantor’s website website, or through such other public medium as the Company may use Issuer shall deem appropriate at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company Issuer to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.013.05.
(c) A Designated Event Purchase Notice may For a Note to be withdrawn by means repurchased at the option of a written notice of withdrawal delivered the Holder pursuant to this Section 3.05(c), the Holder must deliver to the Paying Agent in accordance with the Designated Event Company Notice at any time Agent, prior to the close of business 5:00 p.m., New York City time, on the second Business Day immediately prior to the Designated Event Purchase Repurchase Date, specifying:
(i) a written notice of repurchase (the “Designated Event Repurchase Notice”) in the form set forth on the reverse of the Note duly completed (if certificated Notes have been issued, the Note is certificated) or stating the following (if the Note is represented by a Global Note): (A) the certificate numbers number of the withdrawn NotesNote that the Holder will deliver to be repurchased (if the Note is certificated) or that the relevant Designated Event Repurchase Notice complies with the appropriate Depositary procedures (if the Note is represented by a Global Note), or if not certificated, such notice must comply with appropriate procedures (B) the portion of the Depositary;
(ii) the principal amount of the Note with respect which the Holder will deliver to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Noticebe repurchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
1,000 (d) On or prior to 11:00 a.m. (local time in The City of New York) on provided that the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an remaining principal amount of money sufficient Notes not subject to repurchase on the Designated Event Purchase Date all of the Notes to must be in an authorized denomination) and (C) that such Note shall be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment as of the Designated Event Purchase Price Repurchase Date pursuant to the terms and conditions specified in Section 14.01), the Note and in this Indenture; together with (yii) such Notes duly endorsed for transfer (if the time of Note if certificated) or book-entry transfer or the of such Note (if such Note is represented by a Global Note). The delivery of such Note to the Trustee (or other Paying Agent appointed with, or at any time after delivery of, the Designated Event Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent shall be a condition to the receipt by the Company) by Holder of the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, repurchase price therefor; provided, however, that payments such repurchase price shall be so paid pursuant to this Section 3.05 only if the Notes so delivered to the Depositary Paying Agent shall be made by wire transfer of immediately available funds conform in all respects to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds description thereof in excess of the Designated Event Purchase PriceRepurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Issuer, whose determination shall be final and binding absent manifest error.
(d) The Issuer, if so requested, shall repurchase from the Holder thereof, pursuant to this Section 3.05, a portion of a Note, if the principal amount of such portion is $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of such portion of such Note.
(e) If Notwithstanding the foregoing, no Notes may be repurchased by the Issuer pursuant to this Section 3.05 if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded or cured, on or prior to the relevant Designated Event Repurchase Date (except in the case of an acceleration resulting from a default by the Issuer in the payment of the repurchase price pursuant to this Section 3.05 with respect to the Notes to be repurchased).
(f) The Paying Agent shall promptly notify the Issuer of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof.
(g) The Issuer may arrange for a third party to purchase the Notes (provided that the Trustee (or other Paying Agent appointed is so notified by the CompanyIssuer promptly) holds money sufficient to repurchase on for which the Issuer receives a valid Designated Event Purchase Date all Repurchase Notice that is not withdrawn, in the manner and otherwise in compliance with the requirements set forth herein. If a third party purchases any Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Dateunder these circumstances, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease continue to accrue on such Notes and such Notes will continue to be outstanding after the Designated Event Repurchase Date and will be fungible with all other Notes outstanding. The third party subsequently may resell such purchased Notes to other investors. Any repurchase by the Issuer contemplated pursuant to the provisions of this Section 3.05 shall be consummated by the delivery of the consideration to be received by the Holder (whether or not i) on the Designated Event Repurchase Date if the book-entry transfer or delivery of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); Agent is effected prior to the close of business on the second Business Day prior to the Designated Event Repurchase Date, and (ii) all other rights if delivered later, within two (2) Business Days following the time of the holders book-entry transfer or delivery of such Notes will terminate (other than the right to receive Note. Payment of the repurchase price for a Note for which a Designated Event Purchase Price Repurchase Notice has been delivered and not withdrawn is conditioned upon book-entry transfer or delivery of the Notes), together with necessary endorsements, to the Paying Agent.
Appears in 1 contract
Samples: Indenture (BioMed Realty Trust Inc)
Repurchase at Option of Holders Upon a Designated Event. (a) If a Designated Event occurs at any timetime prior to the Maturity Date, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase all of such holder’s Notes or any portion thereof that is a multiple of $1,000 principal amountamount (provided that the principal amount of any portion of such Note not purchased will be $2,000 or an integral multiple of $1,000 in excess thereof), for cash on the date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less than twenty (20) days and not more than thirty-thirty five (35) calendar days after the date of the Designated Event Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest thereon thereon, if any, to, but excluding, the Designated Event Purchase Repurchase Date (unless the Designated Event Purchase Repurchase Date is between a regular record date and the corresponding Interest Payment Date to which it relatesDate, in which case, case the Company will pay Designated Event Repurchase Price shall equal 100% of the full principal amount of thereof and the accrued and unpaid interest payable on such Interest Payment Date shall be paid to the Noteholders holder of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Repurchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental Change, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Repurchase Notice”) in the form set forth on the reverse of the Note prior to the close of business on or before the Business Day prior to immediately preceding the Designated Event Purchase Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Repurchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Repurchase Price therefor; provided that such Designated Event Purchase Repurchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Repurchase Notice. The Designated Event Purchase Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof (provided that the principal amount of any portion of such Note not purchased will be $2,000 or an integral multiple of $1,000 in excess thereof), and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Repurchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Fundamental Change Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth 20th day after the Effective Date effective date of any Designated Event, the Company shall provide to all holders of record of the Notes and the Trustee and Paying Agent a notice (the “Designated Event Company Notice”) of the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing such noticeDesignated Event Company Notice, the Company shall issue a press release containing this information, publish a notice containing this information in a newspaper of general circulation in The City of New York or publish the information included therein on the Company’s website or through such other public medium as the Company may use at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase rightDesignated Event Repurchase Date;
(iv) the Designated Event Purchase DateRepurchase Price;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Conversion Agent;
(viivi) if applicable, the applicable Put Value Conversion Rate and any adjustments to the applicable Put Value Conversion Rate;
(viiivii) if applicable, that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Repurchase Notice has been previously delivered to the Company by a holder may be converted only if the holder withdraws validly has withdrawn the Designated Event Purchase Repurchase Notice in accordance with Section 14.01(c)the terms of the indenture;
(ixviii) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to immediately preceding the Designated Event Purchase Date Repurchase Date, subject to extension to comply with applicable law (the “Designated Event Expiration Time”);
(xix) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xix) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.0114.02.
(c) A Designated Event Purchase Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Designated Event Company Notice at any time prior to the close of business on the Business Day prior to immediately preceding the Designated Event Purchase Repurchase Date, specifying:
(i) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, or if not certificated, such notice must comply with appropriate procedures of the Depositary;,
(ii) the principal amount of the Note with respect to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Repurchase Notice, which portion must be in principal amounts of $1,000 2,000 or an integral multiple of $1,000;1,000 in excess thereof; provided, however, that if the Notes are not in certificated form, the notice must comply with appropriate procedures of the Depositary.
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the Business Day following the Designated Event Purchase Repurchase Date, the Company will shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.045.04) an amount of money sufficient to repurchase on the Designated Event Purchase Repurchase Date all of the Notes to be repurchased on such date at the Designated Event Purchase Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Repurchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment of the Designated Event Purchase Repurchase Price in Section 14.0114.02), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 14.01, by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Repurchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Repurchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following on the Designated Event Purchase Repurchase Date, then on and after the Designated Event Purchase Repurchase Date (i) such Notes validly tendered for purchase and not validly withdrawn will cease to be outstanding and interest will cease to accrue on such Notes (Notes, whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); , and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Repurchase Price upon delivery of the Notes and previously accrued and unpaid interest upon delivery or transfer of the Notes).
(f) No Notes may be purchased at the option of Noteholders upon a Designated Event if there has occurred and is continuing an Event of Default other than an Event of Default that is cured by the payment of the Designated Event Purchase Price of the Notes.
Appears in 1 contract
Samples: Indenture (Sandisk Corp)
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to maturity of the Notes, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase all of such holder’s Notes Notes, or any portion thereof that is a multiple of $1,000 principal amount, for cash on the date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less than twenty (20) days Business Days and not more than thirty-five thirty (3530) calendar days Business Days after the date of the Designated Event Company Notice (as defined below) of such Designated Event at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest thereon Liquidated Damages thereon, if any, to, but excluding, the Designated Event Purchase Repurchase Date (unless the “ Designated Event Purchase Repurchase Price”). If such Designated Event Repurchase Date is between falls after a regular record date for the payment of Liquidated Damages and on or prior to the corresponding Interest Payment Date to which it relates, in which casepayment date, the Company will shall instead pay the full amount of accrued and unpaid interest Liquidated Damages payable on such Interest Payment Date payment date to the Noteholders holder of record at on the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental Change, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 16.02 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Repurchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the close of business on the Designated Event Purchase Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Repurchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Repurchase Price therefor; provided that such Designated Event Purchase Repurchase Price shall be so paid pursuant to this Section 14.01 16.02 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Repurchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 16.02 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Repurchase Date and the time of the book-entry transfer or delivery of the Note. Notwithstanding anything herein to the contrary, any holder delivering to the Trustee (or other Paying Agent appointed by the Company) the Designated Event Repurchase Notice contemplated by this Section 16.02 shall have the right to withdraw such Designated Event Repurchase Notice at any time prior to the close of business on the Designated Event Repurchase Date by delivery of a written notice of withdrawal to the Trustee (or other Paying Agent appointed by the Company) in accordance with Section 16.03 below. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrenderedthereof.
(b) On or before the tenth day after the Effective Date occurrence of any a Designated Event, the Company shall provide mail to all holders of record of the Notes and the Trustee and Paying Agent a notice (the “Designated Event Company Notice”) of the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing such notice, the The Company shall issue also deliver a press release containing this informationcopy of the Designated Event Notice to the Trustee and cause a copy of such Designated Event Notice, publish or a notice containing this summary of the information contained therein, to be published once in a newspaper of general circulation in The City of New York or publish York. Concurrently with the information on the Company’s website or through such other public medium as mailing of any Designated Event Notice, the Company shall issue a press release announcing such Designated Event referred to in the Designated Event Notice, the form and content of which press release shall be determined by the Company in its sole discretion. The failure to issue any such press release or any defect therein shall not affect the validity of the Designated Event Notice or any proceedings for the repurchase of any Note that any Noteholder may use at that timeelect to have the Company repurchase as provided in this Section 16.02. Each Designated Event Company Notice shall specify:
(i) specify the events causing circumstances constituting the Designated Event, the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) Repurchase Date, the Designated Event Purchase Date;
(v) the Designated Event Purchase Repurchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) , that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Repurchase Date (the “Designated Event Expiration Time”);
(x) , that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) a description of the procedures that holders procedure which a Noteholder must follow to require exercise such repurchase right and to withdraw any surrendered Notes, the Company place or places where the holder is to repurchase their Notessurrender such holder’s Notes and the CUSIP number or numbers of the Notes (if then generally in use) and include a form of Designated Event Repurchase Notice. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.0116.02.
(c) A Designated Event Purchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Designated Event Company Notice at any time prior to the close of business on the Business Day prior to the Designated Event Purchase Date, specifying:
(i) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(ii) the principal amount of the Note with respect to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money sufficient to repurchase on the Designated Event Purchase Date all of the Notes to be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment of the Designated Event Purchase Price in Section 14.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes).
Appears in 1 contract
Samples: Indenture (Sepracor Inc /De/)
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to maturity of the Notes, then each Noteholder shall have the right, at such holder’s 's option, to require the Company to repurchase all of such holder’s Notes 's Notes, or any portion thereof that is a multiple of $1,000 principal amount, for cash on as of the date (the “"Designated Event Purchase Repurchase Date”") specified by the Company that is not less than twenty (20) days and not Business Days nor more than thirty-five (35) calendar days Business Days after the date of the Designated Event Company Notice (as defined belowin Section 3.05(b)) with respect to such Designated Event at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest thereon Interest, if any, to, but excluding, the Designated Event Purchase Repurchase Date (unless the "Designated Event Repurchase Price"); provided that if such Designated Event Repurchase Date falls after a record date and on or prior the corresponding interest payment date, then accrued and unpaid Interest, if any, to, but excluding the Designated Event Purchase Repurchase Date is between a regular shall be paid on such interest payment date to the holders of record of the Notes on the applicable record date and instead of the corresponding Interest Payment Date to which it relates, in which case, holders surrendering the Company will pay the full amount of accrued and unpaid interest payable Notes for repurchase on such Interest Payment Date to the Noteholders of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any date and provided further that no Notes purchased may be repurchased by the Company shall be paid in cash. However, notwithstanding pursuant to this Section 3.05 if the foregoing, Noteholders will principal amount of Notes has been accelerated and such acceleration has not have the right been rescinded on or prior to require the Company to purchase any Notes upon a Fundamental Change, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stockRepurchase Date. Repurchases of Notes under this Section 14.01 3.05 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent paying agent appointed by the Company) by a holder of a duly completed notice (the “"Designated Event Purchase Repurchase Notice”") in the form set forth on the reverse of the Note on or before the Business Day prior to the close of business on the Designated Event Purchase Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent paying agent appointed by the Company) at any time after delivery of the Designated Event Purchase Repurchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent paying agent appointed by the Company) in the Borough of ManhattanManhattan as provided in Section 5.02, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price repurchase price therefor; provided that such Designated Event Purchase Price repurchase price shall be so paid pursuant to this Section 14.01 3.05 only if the Note so delivered to the Trustee (or other Paying Agent paying agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Repurchase Notice. The Designated Event Purchase Notice Company shall state:
(A) if certificatedpurchase from the holder thereof, the certificate numbers of Notes pursuant to be delivered for repurchasethis Section 3.05, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the a portion of a Note, if the principal amount of Notes to be repurchased, which must be such portion is $1,000 or an integral a whole multiple thereof, and
(C) of $1,000. Provisions of this Indenture that the Notes are to be repurchased by the Company pursuant apply to the applicable provisions purchase of all of a Note also apply to the Notes and the Indenturepurchase of such portion of such Note. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 3.05 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Repurchase Date and the time of the book-entry transfer or delivery of the Note. Notwithstanding anything herein to the contrary, any holder delivering to the Trustee (or other paying agent appointed by the Company) the Designated Event Repurchase Notice contemplated by this Section 3.05 shall have the right to withdraw such Designated Event Repurchase Notice at any time prior to the close of business on the Designated Event Repurchase Date by delivery of a written notice of withdrawal to the Trustee (or other paying agent appointed by the Company) in accordance with Section 3.05(c) below. The Trustee (or other Paying Agent paying agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrenderedthereof.
(b) On or before the tenth fifteenth day after the Effective Date occurrence of any a Designated Event, the Company or at its written request (which must be received by the Trustee at least five (5) Business Days prior to the date the Trustee is requested to give notice as described below, unless the Trustee shall provide agree in writing to a shorter period), the Trustee, in the name of and at the expense of the Company, shall mail or cause to be mailed to all holders of record on the date of the Notes and the Trustee and Paying Agent Designated Event a notice (the “"Designated Event Company Notice”") of the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing notice shall be by mailed in the manner and with the effect set forth in the first class mailparagraph of Section 3.02 (without regard for the time limits set forth therein). Simultaneously with providing If the Company shall give such notice, the Company shall also deliver a copy of the Designated Event Notice to the Trustee at such time as it is mailed to Noteholders. Concurrently with the mailing of any Designated Event Notice, the Company shall issue a press release containing this informationannouncing such Designated Event referred to in the Designated Event Notice, publish a notice containing this information in a newspaper the form and content of general circulation in The City of New York or publish the information on the Company’s website or through such other public medium as which press release shall be determined by the Company in its sole discretion. The failure to issue any such press release or any defect therein shall not affect the validity of the Designated Event Notice or any proceedings for the repurchase of any Note which any Noteholder may use at that timeelect to have the Company repurchase as provided in this Section 3.05. Each Designated Event Company Notice shall specify:
(i) specify the events causing circumstances constituting the Designated Event, the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) Repurchase Date, the date of the Designated Event;
(iii) the last date on price at which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect shall be obligated to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) repurchase Notes, that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Repurchase Date (the “"Designated Event Expiration Time”");
(x) , that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) a description of the procedures procedure that holders a Noteholder must follow to require exercise such repurchase right and to withdraw any surrendered Notes, the place or places where the holder is to surrender such holder's Notes, the amount of Interest accrued and unpaid, if any, on each Note to the Designated Event Repurchase Date and the CUSIP number or numbers of the Notes (if then generally in use) and include a form of Designated Event Repurchase Notice. The Designated Event Notice shall indicate whether the Company has elected to repurchase their Notespay the Designated Event Repurchase Price in whole or in part by delivery of Ordinary Shares or common equity of the Company's parent, if applicable, as well as the method by which the Company determined the fair market value of the Ordinary Shares and shall specify the percentage of the Designated Event Repurchase Price to be paid in cash, if any, and the percentage of the Designated Event Repurchase Price to be paid in Ordinary Shares or common equity of the Company's parent. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ ' repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.013.05.
(c) A Designated Event Purchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Designated Event Company Notice at any time prior to the close of business on the Business Day prior to the Designated Event Purchase Date, specifying:
(i) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(ii) the principal amount of the Note with respect to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money sufficient to repurchase on the Designated Event Purchase Date all of the Notes to be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment of the Designated Event Purchase Price in Section 14.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes).
Appears in 1 contract
Samples: Indenture (Amdocs LTD)
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to maturity of the Debentures, then each Noteholder Debentureholder shall have the right, at such holder’s option, to require the Company to repurchase all of such holder’s Notes Debentures for cash, or any portion thereof that is a multiple of $1,000 principal amount, for cash on the date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less than twenty (20) days Business Days and not more than thirty-thirty five (35) calendar days Business Days after the date of the Designated Event Company Notice (as defined below) of such Designated Event at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest interest, including Contingent Interest, if any, and accrued and unpaid Liquidated Damages, if any, thereon to, but excluding, the Designated Event Purchase Repurchase Date (unless the “ Designated Event Purchase Repurchase Price”). If such Designated Event Repurchase Date is between falls after a regular record date for the payment of interest, Contingent Interest or Liquidated Damages and on or prior to the corresponding Interest Payment Date to which it relates, in which caseinterest payment date, the Company will shall instead pay the principal amount to the Debentureholders, and pay the full amount of accrued and unpaid interest interest, including Contingent Interest, if any, and accrued and unpaid Liquidated Damages, if any, payable on such Interest Payment Date interest payment date to the Noteholders holder of record at on the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental Change, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes Debentures under this Section 14.01 16.02 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Repurchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day Debenture prior to the close of business on the Designated Event Purchase Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes Debentures to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Repurchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Repurchase Price therefor; provided that such Designated Event Purchase Repurchase Price shall be so paid pursuant to this Section 14.01 16.02 only if the Note Debenture so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Repurchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 16.02 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Repurchase Date and the time of the book-entry transfer or delivery of the NoteDebenture. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered Notwithstanding anything herein to the Trustee (withcontrary, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the any holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth day after the Effective Date of any Designated Event, the Company shall provide to all holders of record of the Notes and the Trustee and Paying Agent a notice (the “Designated Event Company Notice”) of the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a newspaper of general circulation in The City of New York or publish the information on the Company’s website or through such other public medium as the Company may use at that time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.01.
(c) A Designated Event Purchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Designated Event Company Notice at any time prior to the close of business on the Business Day prior to the Designated Event Purchase Date, specifying:
(i) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(ii) the principal amount of the Note with respect to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money sufficient to repurchase on the Designated Event Purchase Date all of the Notes to be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment of the Designated Event Purchase Price in Section 14.01), and (y) the time of book-entry transfer or the delivery of such Note delivering to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes).Designated
Appears in 1 contract
Samples: Indenture (Blackrock Inc /Ny)
Repurchase at Option of Holders Upon a Designated Event. (a) If a Designated Event occurs at any time, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase all of such holder’s Notes or any portion thereof that is a multiple of $1,000 principal amount, for cash on the date (the “Designated Event Purchase Date”) specified by the Company that is not less than twenty (20) days and not more than thirty-five (35) calendar days after the date of the Designated Event Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest (including Additional Interest, if any) thereon to, but excluding, the Designated Event Purchase Date (unless the Designated Event Purchase Date is between a regular record date and the corresponding Interest Payment Date to which it relates, in which case, the Company will pay the full amount of accrued and unpaid interest (including Additional Interest, if any) payable on such Interest Payment Date to the Noteholders of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental Change, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable convertible based on the Put Value Conversion Rate determined on the basis of shares of such capital stock. In addition, no Notes may be repurchased by the Company at the option of the holders upon a Designated Event if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Designated Event Purchase Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Designated Event Purchase Price with respect to such Notes). Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificatedthe Notes are in definitive form, the certificate numbers of Notes to be delivered for repurchase, or if not certificatedin global form, such notice must comply with appropriate procedures of the Depositary;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Purchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth day after the Effective Date effective date of any Designated Event, the Company shall provide to all holders of record of the Notes and the Trustee and Paying Agent a notice (the “Designated Event Company Notice”) of the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a newspaper of general circulation in The City of New York or publish the information on the Company’s website or through such other public medium as the Company may use at that time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Conversion Agent;
(vii) the applicable Put Value Conversion Rate and any adjustments to the applicable Put Value Conversion Rate;
(viii) that the holder may put surrender the Notes to the Company for conversion with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.01.
(c) A Designated Event Purchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Designated Event Company Notice at any time prior to the close of business on the Business Day prior to the Designated Event Purchase Date, specifying:
(i) if certificated the Notes have been issuedare in definitive form, the certificate numbers of the withdrawn Notes, or if not certificatedin global form, such notice must comply with appropriate procedures of the Depositary;
(ii) the principal amount of the Note with respect to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money sufficient to repurchase on the Designated Event Purchase Date all of the Notes to be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment of the Designated Event Purchase Price in Section 14.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes).
Appears in 1 contract
Repurchase at Option of Holders Upon a Designated Event. (a) For purposes of the Exchangeable Debentures, Section 10.1(a) of the Indenture is hereby replaced and superceded by the following and the following shall apply to the Exchangeable Debentures:
(a) If there shall occur a Designated Event occurs at any timeprior to October 15, 2015, then each Noteholder Holder shall have the right, at such holderHolder’s option, to require the Company to repurchase all of such holderHolder’s Notes Exchangeable Debentures, or any portion thereof that is a multiple of $1,000 principal amount, for cash in cash, on the a date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less Company, which may be no earlier than twenty (20) days and not more no later than thirty-five thirty (3530) calendar days after the date of the Issuer Repurchase Notice related to such Designated Event Company Notice (as defined below) Event, at a repurchase price equal to 100% of the principal amount thereofof the Exchangeable Debentures being repurchased, together with plus accrued and unpaid interest thereon (including Liquidated Damages, if any) to, but excluding, the Designated Event Purchase Date Repurchase Date. A “Designated Event” will be deemed to have occurred upon a Change in Control or a Termination in Trading.”
(unless b) For purposes of the Designated Event Purchase Date Exchangeable Debentures, Section 10.1(b) of the Indenture is between a regular record date hereby replaced and superceded by the following and the corresponding Interest Payment Date to which it relates, in which case, the Company will pay the full amount of accrued and unpaid interest payable on such Interest Payment Date following shall apply to the Noteholders of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental Change, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, uponExchangeable Debentures:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth Thirty-Second calendar day after the Effective Date occurrence of any a Designated Event, the Company shall provide mail or cause to be mailed to all holders Holders of record on the date of the Notes and Designated Event an Issuer Repurchase Notice as set forth in Section 5.03 of the Thirty-Second Supplemental Indenture with respect to such Designated Event. The Company shall also deliver a copy of the Issuer Repurchase Notice to the Trustee and the Paying Agent a notice (at such time as it is mailed to Holders. In addition to the “Designated Event Company Notice”) of the occurrence mailing of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing such noticeIssuer Repurchase Notice, the Company shall issue disseminate a press release containing this informationthrough Dow Xxxxx & Company, Inc. or Bloomberg Business News or a substantially equivalent financial news organization announcing the occurrence of the Designated Event and publish a notice containing this such information in a newspaper of general circulation in The City of New York York, or publish the information on the CompanyHost REIT’s website website, or through such other public medium as the Company may use shall deem appropriate at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the NoteholdersHolders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes Exchangeable Debentures pursuant to this Section 14.0110.1(b).”
(c) A Designated Event Purchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Designated Event Company Notice at any time prior to the close of business on the Business Day prior to the Designated Event Purchase Date, specifying:
(i) if certificated Notes have been issued, the certificate numbers For purposes of the withdrawn NotesExchangeable Debentures, or if not certificated, such notice must comply with appropriate procedures Section 10.1 of the Depositary;
(ii) Indenture is hereby supplemented by adding the principal amount of the Note with respect to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the Business Day following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money sufficient to repurchase on the Designated Event Purchase Date all of the Notes to be repurchased on such date at the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of (x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied the conditions to the payment of the Designated Event Purchase Price in Section 14.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes).following:
Appears in 1 contract
Samples: Supplemental Indenture (Host Hotels & Resorts, Inc.)
Repurchase at Option of Holders Upon a Designated Event. (a) If there shall occur a Designated Event occurs at any timetime prior to the Maturity Date, then each Noteholder shall have the right, at such holderHolder’s option, to require the Company Issuer to repurchase all of such holderHolder’s Notes Notes, or any portion thereof that is a multiple of $1,000 principal amount, for cash in cash, on the a date (the “Designated Event Purchase Repurchase Date”) specified by the Company that is not less Issuer, which may be no earlier than twenty fifteen (2015) days and not more no later than thirty-five thirty (3530) calendar days after the date of the Issuer Designated Event Company Repurchase Notice (as defined below) related to such Designated Event, at a repurchase price equal to 100% of the principal amount thereofof the Notes being repurchased, together with plus accrued and unpaid interest thereon to, but excluding, the Designated Event Purchase Repurchase Date (unless the “Designated Event Repurchase Price”); provided, however, that if the Designated Event Purchase Repurchase Date is between falls after a regular record date Record Date and on or prior to the corresponding Interest Payment Date to which it relates, in which caseinterest payment date, the Company will Issuer shall pay the full amount of accrued and unpaid interest payable interest, if any, on such Interest Payment Date interest payment date to the Noteholders Holder of record at the close of business on the corresponding regular record date) (the “Designated Event Purchase Price”). Any Notes purchased by the Company shall be paid in cash. However, notwithstanding the foregoing, Noteholders will not have the right to require the Company to purchase any Notes upon a Fundamental ChangeRecord Date, and the Company will not be required to deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction consists of capital stock traded on a U.S. national securities exchange or approved for quotation on a United States system of automated dissemination of quotations of securities prices similar to the NASDAQ Global Market prior to its designation as a national securities exchange (or Repurchase Price will be so traded or quoted immediately following the merger or consolidation) and, as a result of such transaction, the Notes become puttable based on the Put Value Rate determined on the basis of shares of such capital stock. Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set forth on the reverse of the Note on or before the Business Day prior to the Designated Event Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Designated Event Purchase Notice (together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Designated Event Purchase Price therefor; provided that such Designated Event Purchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Designated Event Purchase Notice. The Designated Event Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase, or if not certificated, such notice must comply with appropriate procedures of the Depositary;
(B) the portion 100% of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture. Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the holder promptly following the later of the Designated Event Purchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 14.01(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by the holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal of the Note so surrendered.
(b) On or before the tenth day Within 20 calendar days after the Effective Date occurrence of any a Designated Event, the Company Issuer shall provide give or cause to be given to all holders Holders of record on the date of the Notes Designated Event (and to beneficial owners as required by applicable law) an Issuer Designated Event Repurchase Notice as set forth in Section 4.02 with respect to such Designated Event. The Issuer shall also deliver a copy of the Issuer Designated Event Repurchase Notice to the Trustee, Exchange Agent and the Trustee and Paying Agent a notice (at such time as it is given to Noteholders. In addition to the “giving of such Issuer Designated Event Company Repurchase Notice”) of , the Issuer shall disseminate a press release through Dow Xxxxx & Company, Inc. or Bloomberg Business News announcing the occurrence of such Designated Event and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. Simultaneously with providing or publish such notice, the Company shall issue a press release containing this information, publish a notice containing this information in a The Wall Street Journal or another newspaper of general circulation in The City of New York or publish the information on the Company’s website website, or through such other public medium as the Company may use Issuer shall deem appropriate at that such time. Each Designated Event Company Notice shall specify:
(i) the events causing the Designated Event and whether such Designated Event also constituted a Fundamental Change;
(ii) the date of the Designated Event;
(iii) the last date on which a holder may exercise the repurchase right;
(iv) the Designated Event Purchase Date;
(v) the Designated Event Purchase Price;
(vi) the name and address of the Paying Agent and the Put Exercise Agent;
(vii) the applicable Put Value Rate and any adjustments to the applicable Put Value Rate;
(viii) that the holder may put the Notes to the Company with respect to which a Designated Event Purchase Notice has been previously delivered to the Company by a holder only if the holder withdraws the Designated Event Purchase Notice in accordance with Section 14.01(c);
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day prior to the Designated Event Purchase Date (the “Designated Event Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Designated Event Expiration Time, and
(xi) the procedures that holders must follow to require the Company to repurchase their Notes. No failure of the Company Issuer to give the foregoing notices and no defect therein shall limit the Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 14.014.01.
(c) A Designated Event Purchase Notice may For a Note to be withdrawn by means repurchased at the option of a written notice of withdrawal delivered the Holder pursuant to this Section 4.01(c), the Holder must deliver to the Paying Agent in accordance with the Designated Event Company Notice at any time Agent, prior to the close of business on the second Business Day immediately prior to the Designated Event Purchase Repurchase Date, specifying:
(i) a written notice of repurchase (the “Designated Event Repurchase Notice”) in the form set forth on the reverse of the Note duly completed specifying (A) (if certificated Notes have been issued, the Note is certificated) the certificate numbers number of the withdrawn NotesNote that the Holder will deliver to be repurchased or (if the Note is represented by a Global Note) that the relevant Designated Event Repurchase Notice complies with the appropriate Depositary procedures, or if not certificated, such notice must comply with appropriate procedures (B) the portion of the Depositary;
(ii) the principal amount of the Note with respect which the Holder will deliver to which such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject to the original Designated Event Purchase Noticebe repurchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;1,000 (provided that the remaining principal amount of Notes not subject to repurchase must be in an authorized denomination) and (C) that such Note shall be repurchased as of the Designated Event Repurchase Date pursuant to the terms and conditions specified in the Note and in this Indenture; together with (ii) such Notes duly endorsed for transfer (if the Note is certificated) or book-entry transfer of such Note (if such Note is represented by a Global Note). The delivery of such Note to the Paying Agent with, or at any time after delivery of, the Designated Event Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent shall be a condition to the receipt by the Holder of the Designated Event Repurchase Price therefor; provided, however, that such Designated Event Repurchase Price shall be so paid pursuant to this Section 4.01 only if the Notes so delivered to the Paying Agent shall conform in all respects to the description thereof in the Designated Event Repurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Issuer, whose determination shall be final and binding absent manifest error, and the Trustee may rely and shall be fully protected in relying on such determination by the Issuer.
(d) On The Issuer, if so requested, shall repurchase from the Holder thereof, pursuant to this Section 4.01, a portion of a Note, if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of such portion of such Note.
(e) Notwithstanding the foregoing, no Notes may be repurchased by the Issuer pursuant to this Section 4.01 if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded or cured, on or prior to 11:00 a.m. the relevant Repurchase Date (local time except in The City the case of New York) on an acceleration resulting from a default by the Business Day following Issuer in the payment of the Designated Event Purchase Date, the Company will deposit Repurchase Price pursuant to this Section 4.01 with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money sufficient respect to repurchase on the Designated Event Purchase Date all of the Notes to be repurchased on such date at repurchased).
(f) The Paying Agent shall promptly notify the Issuer of the receipt by it of any Designated Event Purchase PriceRepurchase Notice or written notice of withdrawal thereof. Subject to receipt of funds and/or Notes Any repurchase by the Trustee (or other Paying Agent appointed Issuer contemplated pursuant to the provisions of this Section 4.01 shall be consummated by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior delivery of the consideration to be received by the Designated Event Expiration Time will be made promptly after Holder on the later of (x) two (2) Business Days following the time of book-entry transfer or delivery of such Note to the Paying Agent by the Holder thereof in the manner required by this Section 4.01 and (y) the Designated Event Purchase Repurchase Date with respect to such Note (provided the holder Holder has satisfied the conditions to the payment in this Section 4.01). Payment of the Designated Event Purchase Repurchase Price in Section 14.01), on the Designated Event Repurchase Date for a Note for which a Designated Event Repurchase Notice has been delivered and (y) the time of not withdrawn is conditioned upon book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the holder thereof in the manner required by Section 14.01 by mailing checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in the Note Register, provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Designated Event Purchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Designated Event Purchase Date, then on and after the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders of such Notes will terminate (other than the right to receive the Designated Event Purchase Price upon delivery of the Notes), together with necessary endorsements, to the Paying Agent prior to the close of business on the second Business Day prior to the Designated Event Repurchase Date.
Appears in 1 contract
Samples: Indenture (Sl Green Realty Corp)
