Repurchase at Option of Noteholders upon a Fundamental Change. (1) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase for cash all of such holder’s Notes, or any portion thereof that is an integral multiple of $200,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty Business Days and not more than thirty-five Business Days after the date of the Fundamental Change 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 Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 shall be equal to 100% of the principal amount of Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase of a portion (less than all) of its Notes only if the Notes the Noteholder retains are in a Permitted Denomination. Repurchases of Notes under this Section 13.01 shall be made, at the option of the holder thereof, upon: (i) delivery to the Paying Agent by a holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as Exhibit D thereto on or prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and (ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state: (A) if certificated, the certificate numbers of Notes to be delivered for repurchase; (B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such notice. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 13.03(a). Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 13.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date in accordance with Section 13.02. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
Appears in 2 contracts
Samples: Indenture (Qiagen Nv), Indenture (Qiagen Nv)
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase for cash all of such holder’s Notes, or any portion thereof that is an integral multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty Business Days fifteen days and not more than thirty-five Business Days 35 days after the date of the Fundamental Change Company Repurchase Right Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest interest, including any Extension Fee, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 16 shall be equal to 100% of the principal amount of Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase of a portion (less than all) of its Notes only if the Notes the Noteholder retains are in a Permitted Denominationrepurchase. Repurchases of Notes under this Section 13.01 16.02 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Paying Agent by a holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as Exhibit D C thereto on or prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office Corporate Trust Office of the Paying AgentAgent in The Borough of Manhattan, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 16.02 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such noticeappropriate Depositary procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 16.02 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 13.03(a). Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 13.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding later of the Fundamental Change Repurchase Date in accordance with Section 13.02. The Paying Agent shall promptly notify and the Company time of the receipt by it book-entry transfer or delivery of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthe Note as described in Section 16.04(a).
Appears in 2 contracts
Samples: Indenture (Teradyne, Inc), Indenture (Teradyne, Inc)
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase for cash all of such holder’s Notes, or any portion thereof that is an integral multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty Business Days and not more than thirty-five Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest interest, including unpaid Additional Interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 16 shall be equal to 100% of the principal amount of Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase of a portion (less than all) of its Notes only , including Additional Interest, if the Notes the Noteholder retains are in a Permitted Denominationany. Repurchases of Notes under this Section 13.01 16.02 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Paying Agent by a holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note and attached as Exhibit D thereto C hereto on or prior to the close of business on the Business second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of on or prior to the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Notice Date (together with all necessary endorsements) at the office of the Paying Agent, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 16.02 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such noticeappropriate Depositary procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 16.02 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 13.03(a16.04(a). Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 13.01 16.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date in accordance with Section 13.0216.03. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(b) On or before the twentieth calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall mail or cause to be mailed to all holders of record of the Notes a notice (the “Fundamental Change Company Notice”) of, and issue a press release (and make the press release available on the Company’s website) in respect of, the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. The Company shall also deliver a copy of the Fundamental Change Company Notice to the Trustee, the Paying Agent and the Conversion Agent within five Business Days after the effective date of the Fundamental Change. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change, and whether the Fundamental Change is a Make-Whole Fundamental Change, in which case the Effective Date of the Make-Whole Fundamental Change;
(iii) the last date on which a holder may exercise the repurchase right pursuant to this Article 16;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) if applicable, the name and address of the Paying Agent and the Conversion Agent;
(vii) if applicable, the applicable Conversion Rate, and any adjustments to the applicable Conversion Rate;
(viii) if applicable, that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a holder may be converted only if the holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture;
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Fundamental Change 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 16.02.
(c) Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option of the holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes).
(d) In connection with any purchase offer, the Company will:
(i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act, if required under the Exchange Act,
(ii) file a Schedule TO or any successor or similar schedule, if required under the Exchange Act, and
(iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to purchase the Notes. Notwithstanding anything to the contrary provided in this Indenture, compliance by the Company with Rule 13e-4, Rule 14e-1 and any other tender offer rule under the Exchange Act in accordance with clause (i) above, to the extent inconsistent with any other provision of this Indenture, will not, standing alone, constitute an Event of Default solely as a result of compliance by the Company with such rules. Notwithstanding the foregoing the Company shall not be required to repurchase the Notes in accordance with this Section 16.02 if a third party makes an offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 16.02 and purchases all Notes validly tendered and not withdrawn under such purchase offer.
Appears in 2 contracts
Samples: Indenture (MGM Resorts International), Indenture (MGM Mirage)
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase for cash all of such holder’s Notes, or any portion thereof that is an integral multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty Business Days and not more than thirty-five Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest interest, including unpaid Additional Interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 6 shall be equal to 100% of the principal amount of Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase of a portion (less than all) of its Notes only , including Additional Interest, if the Notes the Noteholder retains are in a Permitted Denominationany. Repurchases of Notes under this Section 13.01 6.02 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Paying Agent by a holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as Exhibit D C thereto on or prior to the close of business on the Business Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 6.02 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such noticeappropriate Depositary procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 6.02 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 13.03(a6.04(a). Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 13.01 6.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date in accordance with Section 13.026.03. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(b) On or before the twentieth calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall mail or cause to be mailed to all holders of record of the Notes and the Trustee a notice (the “Fundamental Change Company Notice”) of, issue a press release in respect of (and make such press release available on the Company’s website), the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. The Company shall also deliver a copy of the Fundamental Change Company Notice to the Trustee, the Paying Agent and the Conversion Agent within five Business Days after the effective date of the Fundamental Change. Simultaneously with the providing of such notice, the Company will also publish a notice containing the information set forth in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change, and whether the Fundamental Change is a Make-Whole Fundamental Change, in which case the Effective Date of the Make-Whole Fundamental Change;
(iii) the last date on which a holder may exercise the repurchase right pursuant to this Article 6;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) if applicable, the name and address of the Paying Agent and the Conversion Agent;
(vii) if applicable, the applicable Conversion Rate, and any adjustments to the applicable Conversion Rate;
(viii) if applicable, that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a holder may be converted only if the holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture;
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Fundamental Change 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 6.02.
(c) Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option of the holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes).
(d) In connection with any purchase offer, the Company will:
(i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act, if required under the Exchange Act,
(ii) file a Schedule TO or any successor or similar schedule, if required under the Exchange Act, and
(iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to purchase the Notes. Notwithstanding anything to the contrary provided in this Indenture, compliance by the Company with Rule 13e-4, Rule 14e-1 and any other tender offer rule under the Exchange Act in accordance with clause (i) above, to the extent inconsistent with any other provision of this Indenture, will not, standing alone, constitute an Event of Default solely as a result of compliance by the Company with such rules. Notwithstanding the foregoing the Company shall not be required to repurchase the Notes in accordance with this Section 6.02 if a third party makes an offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 6.02 and purchases all Notes validly tendered and not withdrawn under such purchase offer.
Appears in 2 contracts
Samples: Second Supplemental Indenture (Borgwarner Inc), Second Supplemental Indenture (Borgwarner Inc)
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase for cash all of such holder’s Notes, or any portion thereof that is an integral multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty Business Days and not more than thirty-five Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest interest, including unpaid Additional Interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 shall be equal to 100% of the principal amount of Notes subject to repurchase and will not include any accrued and unpaid interest, including Additional Interest, if any. A Noteholder may require repurchase of a portion (less than all) of its Notes only if the Notes the Noteholder retains are in a Permitted Denomination. Repurchases of Notes under this Section 13.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Paying Agent by a holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as Exhibit D C thereto on or prior to the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such noticeappropriate Depositary procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 13.03(a). Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 13.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date in accordance with Section 13.02. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(b) On or before the twentieth calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall mail or cause to be mailed to all holders of record of the Notes a notice (the “Fundamental Change Company Notice”) of, and issue a press release in respect of (and make such press release available on its website), the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. The Company shall also deliver a copy of the Fundamental Change Company Notice to the Trustee, the Paying Agent and the Conversion Agent within five Business Days after the effective date of the Fundamental Change. Simultaneously with the providing of such notice, the Company will also publish a notice containing the information set forth in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change, and whether the Fundamental Change is a Make-Whole Fundamental Change, in which case the effective date of the Make-Whole Fundamental Change;
(iii) the last date on which a holder may exercise the repurchase right pursuant to this Article 13;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) if applicable, the name and address of the Paying Agent and the Conversion Agent;
(vii) if applicable, the applicable Conversion Rate, and any adjustments to the applicable Conversion Rate;
(viii) if applicable, that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a holder may be converted only if the holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture;
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Fundamental Change 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 13.01.
(c) Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option of the holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes).
(d) In connection with any purchase offer, the Company will:
(i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act, if required under the Exchange Act,
(ii) file a Schedule TO or any successor or similar schedule, if required under the Exchange Act, and
(iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to purchase the Notes. Notwithstanding anything to the contrary provided in this Indenture, compliance by the Company with Rule 13e-4, Rule 14e-1 and any other tender offer rule under the Exchange Act in accordance with clause (i) above, to the extent inconsistent with any other provision of this Indenture, will not, standing alone, constitute an Event of Default solely as a result of compliance by the Company with such rules. Notwithstanding the foregoing the Company shall not be required to repurchase the Notes in accordance with this Section 13.01 if a third party makes an offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 13.01 and purchases all Notes validly tendered and not withdrawn under such purchase offer.
Appears in 2 contracts
Samples: Indenture (Ascent Capital Group, Inc.), Indenture (Ascent Capital Group, Inc.)
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase for cash all of such holder’s Notes, or any portion thereof that is an integral multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty Business Days and not more than thirty-five Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest interest, including unpaid Additional Interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 16 shall be equal to 100% of the principal amount of Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase of a portion (less than all) of its Notes only , including Additional Interest, if the Notes the Noteholder retains are in a Permitted Denominationany. Repurchases of Notes under this Section 13.01 16.02 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Paying Agent by a holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as Exhibit D C thereto on or prior to the close of business on the Business Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 16.02 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such noticeappropriate Depositary procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 16.02 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 13.03(a16.04(a). Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 13.01 16.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date in accordance with Section 13.0216.03. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(b) On or before the twentieth calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall mail or cause to be mailed to all holders of record of the Notes a notice (the “Fundamental Change Company Notice”) of, and issue a press release in respect of, the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. The Company shall also deliver a copy of the Fundamental Change Company Notice to the Trustee, the Paying Agent and the Conversion Agent within five Business Days after the effective date of the Fundamental Change. Simultaneously with the providing of such notice, the Company will also publish a notice containing the information set forth in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change, and whether the Fundamental Change is a Make-Whole Fundamental Change, in which case the Effective Date of the Make-Whole Fundamental Change;
(iii) the last date on which a holder may exercise the repurchase right pursuant to this Article 16;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) if applicable, the name and address of the Paying Agent and the Conversion Agent;
(vii) if applicable, the applicable Conversion Rate, and any adjustments to the applicable Conversion Rate;
(viii) if applicable, that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a holder may be converted only if the holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture;
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Fundamental Change 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 16.02.
(c) Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option of the holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes).
(d) In connection with any purchase offer, the Company will:
(i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act, if required under the Exchange Act,
(ii) file a Schedule TO or any successor or similar schedule, if required under the Exchange Act, and
(iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to purchase the Notes. Notwithstanding anything to the contrary provided in this Indenture, compliance by the Company with Rule 13e-4, Rule 14e-1 and any other tender offer rule under the Exchange Act in accordance with clause (i) above, to the extent inconsistent with any other provision of this Indenture, will not, standing alone, constitute an Event of Default solely as a result of compliance by the Company with such rules. Notwithstanding the foregoing the Company shall not be required to repurchase the Notes in accordance with this Section 16.02 if a third party makes an offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 16.02 and purchases all Notes validly tendered and not withdrawn under such purchase offer.
Appears in 2 contracts
Samples: Indenture (Alliance Data Systems Corp), Indenture (Alliance Data Systems Corp)
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase for cash all of such holder’s Notes, or any portion thereof that is an integral multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty Business Days and not more than thirty-five Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest interest, including unpaid Additional Interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 Section 16.04 shall be equal to 100% of the principal amount of the Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase of a portion (less than all) of its Notes only , including Additional Interest, if the Notes the Noteholder retains are in a Permitted Denominationany. Repurchases of Notes under this Section 13.01 16.04 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Paying Agent by a holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as Exhibit D C thereto on or prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 16.04 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such noticeappropriate Depositary procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 16.04 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 13.03(a16.06(a). Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 13.01 16.04 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date in accordance with Section 13.0216.05 below. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(b) On or before the twentieth calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall mail or cause to be mailed to all holders of record of the Notes (and to beneficial owners if required by applicable law) a notice (the “Fundamental Change Company Notice”) of, and issue a press release (and make such press release available on the Company’s website) in respect of, the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. The Company shall also deliver a copy of the Fundamental Change Company Notice to the Trustee, the Paying Agent and the Conversion Agent within five Business Days after the effective date of the Fundamental Change. Simultaneously with the providing of such notice, the Company will also issue a press release containing the information set forth in the Fundamental Change Company Notice and make the press release available on the Company’s website. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change, and whether the Fundamental Change is a Make-Whole Fundamental Change, in which case the effective date of the Make-Whole Fundamental Change;
(iii) the last date on which a holder may exercise the repurchase right pursuant to this Section 16.04;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) if applicable, the name and address of the Paying Agent and the Conversion Agent;
(vii) if applicable, the applicable Conversion Rate, and any adjustments to the applicable Conversion Rate;
(viii) if applicable, that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a holder may be converted only if the holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture;
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Fundamental Change 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 a Fundamental Change Company Notice 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 16.04.
(c) Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option of the holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date (except in the case of an acceleration resulting from a default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes).
(d) In connection with any purchase offer, the Company will:
(i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act, if required under the Exchange Act,
(ii) file a Schedule TO or any successor or similar schedule, if required under the Exchange Act, and
(iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to purchase the Notes. Notwithstanding anything to the contrary provided in this Indenture, compliance by the Company with Rule 13e-4, Rule 14e-1 and any other tender offer rule under the Exchange Act in accordance with clause (i) above, to the extent inconsistent with any other provision of this Indenture, will not, standing alone, constitute an Event of Default solely as a result of compliance by the Company with such rules. Notwithstanding the foregoing the Company shall not be required to repurchase the Notes in accordance with this Section 16.04 if a third party makes an offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 16.04 and purchases all Notes validly tendered and not withdrawn under such purchase offer.
Appears in 1 contract
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change occurs at any time prior to the Maturity Datetime, then each Noteholder shall have the right, at such holderNoteholder’s option, to require the Company Issuer to repurchase for cash all of such holderNoteholder’s Notes, Notes or any portion thereof that is an integral a multiple of $200,000 1,000 principal amount, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company Issuer that is not less than twenty 15 Business Days and not more than thirty-five 30 Business Days after the date of the Fundamental Change Company Issuer 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 Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 shall be equal to 100% of the principal amount of Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase of a portion (less than all) of its Notes only if the Notes the Noteholder retains are in a Permitted Denomination. Repurchases of Notes under this Section 13.01 8.02 shall be made, at the option of the holder Holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Issuer) by a holder Noteholder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as Exhibit D thereto on or prior to the close of business 10:00 a.m., New York City time on the Business Day immediately preceding prior to the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Issuer) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office Corporate Trust Office of the Trustee (or other Paying AgentAgent appointed by the Issuer), such delivery being a condition to receipt by the holder Noteholder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 8.02 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Issuer) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 1,000 or an integral multiple thereof; and
(C) that the Notes are to be repurchased by the Company Issuer pursuant to the applicable provisions of the Notes and this Seventh Supplemental Indenture. Any repurchase by the Issuer contemplated pursuant to the provisions of this Section 8.02 shall be consummated by the delivery of the consideration to be received by the Noteholder promptly following the later of the Fundamental Change Repurchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Issuer) shall promptly notify the Issuer of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 8.02(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Issuer or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Issuer 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 twentieth day after the occurrence of any Fundamental Change, the Issuer shall provide to all Noteholders of record and the Trustee and Paying Agent a notice (the “Fundamental Change Issuer Notice”) of the occurrence of such Fundamental Change and of the repurchase right at the option of the Noteholders arising as a result thereof. Such mailing shall be by first-class mail. Simultaneously with providing such Fundamental Change Issuer Notice, the Issuer shall disseminate a press release through Dow Xxxxx & Company, Inc., Bloomberg Business News or PR Newswire containing the information included therein or publish such information in a newspaper of general circulation in The City of New York or publish such information on the Issuer’s web site or through such other public medium as the Issuer may use at such time. Each Fundamental Change Issuer Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) that the Noteholder must exercise the repurchase right by delivering to the Trustee on or prior to 10:00 a.m., New York City time, on the Business Day prior to the Fundamental Change Repurchase Date the Fundamental Change Repurchase Notice;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent;
(vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Noteholder may be converted only if the Noteholder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Seventh Supplemental Indenture; and
(ix) the procedures that Noteholders must follow to require the Issuer to repurchase their Notes. No failure of the 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 8.02.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Issuer Notice at any time prior to 10:00 a.m. New York City Time on the Business Day prior to the Fundamental Change Repurchase Date, specifying:
(i) The name of the holder;
(ii) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted;
(iii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes; and
(iv) the principal amount, if any, of such Notes that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; 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 2:00 p.m. (New York City time) on the second Business Day following the Fundamental Change Repurchase Notice must comply Date, the Issuer shall deposit with the Applicable Procedures and the Trustee (or other Paying Agent must receive such notice. Any repurchase appointed by the Company contemplated pursuant Issuer or if the Issuer is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance with the Original Indenture) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Issuer), payment for Notes surrendered for repurchase (and not withdrawn) prior to the provisions Close of this Section 13.01 shall Business on the Fundamental Change Repurchase Date will be consummated by made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Noteholder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price pursuant to in Section 13.03(a8.02). Notwithstanding anything herein , and (y) the time of book-entry transfer or the delivery of such Note to the contrary, any holder delivering Trustee (or other Paying Agent appointed by the Issuer) by the Holder thereof in the manner required by Section 8.02 by mailing checks for the amount payable to the Paying Agent Holders of such Notes entitled thereto as they shall appear in the 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 Issuer, but in no event later than one Business Day after the receipt of such written demand, return to the Issuer any funds in excess of the Fundamental Change Repurchase Notice contemplated Price.
(e) If the Trustee (or other Paying Agent appointed by this Section 13.01 shall have the right Issuer) holds money or securities sufficient to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business repurchase on the Business Day immediately preceding the Fundamental Change Repurchase Date all the Notes or portions thereof that are to be purchased as of the second Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease to be Outstanding, (ii) interest 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, other than the right to receive the Fundamental Change Repurchase Price upon delivery of the Notes.
(f) To the extent legally required in connection with a repurchase of Notes under this Section 8.02, the Issuer will comply with the provisions of Rule 13e-4 and other tender offer rules under the Exchange Act then applicable, if any, and will file a Schedule TO or any other schedule required under the Exchange Act.
(g) The Issuer may arrange for a third party to purchase any Notes for which it receives a Fundamental Change Repurchase Notice in accordance with Section 13.028.02(a) that is not withdrawn pursuant to Section 8.02(c). The Paying Agent shall promptly notify If a third party purchases any Notes, interest will continue to accrue on such Notes and the Company of Notes will continue to be Outstanding after the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofDate and will be fungible with all other Notes then Outstanding.
Appears in 1 contract
Samples: Seventh Supplemental Indenture (National Retail Properties, Inc.)
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase for cash all of such holder’s Notes, or any portion thereof that is an integral multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty Business Days and not more than thirty-five Business Days after the date of the Fundamental Change 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 Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest (including Additional Interest, if any) accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 6 shall be equal to 100% of the principal amount of Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase of a portion interest (less than all) of its Notes only including Additional Interest, if the Notes the Noteholder retains are in a Permitted Denominationany). Repurchases of Notes under this Section 13.01 6.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Paying Agent by a holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as Exhibit D C thereto on or prior to the close of business on the Business Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 6.01 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such noticeappropriate Depositary procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 6.01 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 13.03(a6.03(a). Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 13.01 6.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date in accordance with Section 13.026.02. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(b) On or before the twentieth calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide or cause to be provided to all holders of record of the Notes and the Trustee a notice (the “Fundamental Change Company Notice”) of, and issue a press release (and make such press release available on the Company’s website) in respect of, the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof. The Company shall also deliver a copy of the Fundamental Change Company Notice to the Trustee, the Paying Agent and the Conversion Agent within five Business Days after the effective date of the Fundamental Change. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change, and whether the Fundamental Change is a Make-Whole Fundamental Change, in which case the Effective Date of the Make-Whole Fundamental Change;
(iii) the last date on which a holder may exercise the repurchase right pursuant to this Article 6;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) if applicable, the name and address of the Paying Agent and the Conversion Agent;
(vii) if applicable, the applicable Conversion Rate, and any adjustments to the applicable Conversion Rate resulting from the Fundamental Change;
(viii) if applicable, that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a holder may be converted only if the holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture;
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Fundamental Change 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 6.01.
(c) Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option of the holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes).
(d) In connection with any purchase offer, the Company will:
(i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other applicable tender offer rules under the Exchange Act, if required under the Exchange Act,
(ii) file a Schedule TO or any successor or similar schedule, if required under the Exchange Act, and
(iii) otherwise comply with all applicable federal and state securities laws in connection with any offer by the Company to purchase the Notes. Notwithstanding anything to the contrary provided in this Indenture, compliance by the Company with Rule 13e-4, Rule 14e-1 and any other tender offer rule under the Exchange Act in accordance with clause (i) above, to the extent inconsistent with any other provision of this Indenture, will not, standing alone, constitute an Event of Default solely as a result of compliance by the Company with such rules. Notwithstanding the foregoing the Company shall not be required to repurchase the Notes in accordance with this Section 6.01 if a third party makes an offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 6.01 and purchases all Notes validly tendered and not withdrawn under such purchase offer.
Appears in 1 contract
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall have the right, at such holderNoteholder’s option, to require the Company to repurchase for cash all of such holderNoteholder’s Notes, or any portion thereof that is an integral multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) ), specified by the Company that is not less than twenty 20 Business Days and not more than thirty-five 35 Business Days after the date on which the Company provides the Fundamental Change Company Notice (or, if the Company fails to specify a Fundamental Change Repurchase Date, the 35th Business Day following the date of the Fundamental Change Company Notice (as defined belowNotice, without prejudice to any rights or remedies Noteholders may have on account of such failure) at a cash repurchase price (the “Fundamental Change Repurchase Price”) equal to 100% of the principal amount thereof, together with accrued and unpaid interest interest, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes Noteholders as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder Noteholder surrendering the Note for repurchase pursuant to this Article 13 19 shall be equal to 100% of the principal amount of Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase of a portion (less than all) of its Notes only if the Notes the Noteholder retains are in a Permitted Denominationrepurchase. Repurchases of Notes under this Section 13.01 19.02 shall be made, at the option of the holder Noteholder thereof, upon:
(i) delivery to the Paying Agent by a holder Noteholder of a duly completed notice (the “Fundamental Change Repurchase Notice”) ), in the form set forth on the reverse of the Note as Exhibit D thereto on or prior to the close 5:00 p.m., New York City time, of business on the Business Day immediately preceding the Fundamental Change Repurchase DateDate (the “Fundamental Change Expiration Time”); and
(ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office Corporate Trust Office of the Paying AgentAgent in The Borough of Manhattan, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 19.02 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this the Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such noticeappropriate Depositary procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 19.02 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 13.03(a). Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 13.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding later of the Fundamental Change Repurchase Date in accordance with Section 13.02. The Paying Agent shall promptly notify and the Company time of the receipt by it book-entry transfer or delivery of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthe Note as described in Section 19.04(a).
Appears in 1 contract
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall have the right, at such holderNoteholder’s option, to require the Company to repurchase for cash all of such holderNoteholder’s Notes, or any portion thereof that is an integral multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty 20 Business Days and not more than thirty-five 35 Business Days after the date of on which the Company provides the Fundamental Change Company Notice (as defined below) at a cash repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest interest, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes Noteholders as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder Noteholder surrendering the Note for repurchase pursuant to this Article 13 19 shall be equal to 100% of the principal amount of Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase of a portion (less than all) of its Notes only if the Notes the Noteholder retains are in a Permitted Denominationrepurchase. Repurchases of Notes under this Section 13.01 19.02 shall be made, at the option of the holder Noteholder thereof, upon:
(i) delivery to the Paying Agent by a holder Noteholder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as Exhibit D thereto on or prior to the close 5:00 p.m., New York City time, of business on the Business Day immediately preceding the Fundamental Change Repurchase DateDate (the “Fundamental Change Expiration Time”); and
(ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office Corporate Trust Office of the Paying AgentAgent in The Borough of Manhattan, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 19.02 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this the Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such noticeappropriate Depositary procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 19.02 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 13.03(a). Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 13.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding later of the Fundamental Change Repurchase Date in accordance with Section 13.02. The Paying Agent shall promptly notify and the Company time of the receipt by it book-entry transfer or delivery of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthe Note as described in Section 19.04(a).
Appears in 1 contract
Samples: Indenture (Alaska Communications Systems Group Inc)
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to maturity of the Maturity DateNotes, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase for cash all of such holder’s NotesNotes for cash, or any portion thereof that is an integral a multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty (20) Business Days and not more than thirty-thirty five (35) Business Days after the date of the Fundamental Change Company Repurchase Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the . If such Fundamental Change Repurchase Date is falls after an Interest Record Date a record date for the payment of interest and on or prior to the related corresponding Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 Company shall be equal to 100% of instead pay the principal amount to the Noteholders, and pay the full amount of Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase , if any, payable on such Interest Payment Date to the holder of a portion (less than all) record of its Notes only if the Notes on the Noteholder retains are in a Permitted Denominationclose of business on the corresponding record date. Repurchases of Notes under this Section 13.01 5.01 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 “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as Exhibit D thereto on or prior to the close of business on the Business Day immediately preceding the Fundamental Change 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 Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office Corporate Trust Office of the Trustee (or other Paying AgentAgent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 5.01 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 Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such notice. Any repurchase purchase by the Company contemplated pursuant to the provisions of this Section 13.01 5.01 shall be consummated by the payment delivery of the consideration to be received by the holder promptly following the later of the Fundamental Change Repurchase Price pursuant to Section 13.03(a)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 Fundamental Change Repurchase Notice contemplated by this Section 13.01 5.01 shall have the right to withdraw, in whole or in part, withdraw such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding prior to the Fundamental Change 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 13.025.02 below. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(b) On or before the fifteenth day after the occurrence of a Fundamental Change, the Company shall mail to all holders of record of the Notes a notice (the “Fundamental Change Notice”) of the occurrence of such Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. The Company shall also deliver a copy of the Fundamental Change Notice to the Trustee and cause a copy of such Fundamental Change Notice, or a summary of the information contained therein, to be published once in a newspaper of general circulation in The City of New York. Concurrently with the mailing of any Fundamental Change Notice, the Company shall issue a press release announcing such Fundamental Change referred to in the Fundamental Change 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 Fundamental Change Notice or any proceedings for the repurchase of any Note that any Noteholder may elect to have the Company repurchase as provided in this Section 5.01. Each Fundamental Change Notice shall specify the circumstances constituting the Fundamental Change, the Fundamental Change Repurchase Date and the Fundamental Change Repurchase Price, that the holder must exercise the repurchase right on or prior to the close of business on the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”), that the holder shall have the right to withdraw any Notes surrendered prior to the Fundamental Change Expiration Time, a description of the procedure which a Noteholder must follow to exercise such repurchase right and to withdraw any surrendered Notes, the place or places where the holder is to surrender such holder’s Notes and the CUSIP number or numbers of the Notes (if then generally in use) and include a form of Fundamental Change 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 5.01.
(c) Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option of the holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date.
Appears in 1 contract
Samples: First Supplemental Indenture (Molina Healthcare Inc)
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to the Stated Maturity Dateof the Notes, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase for cash all of such holder’s NotesNotes for cash, or any portion thereof that is an integral a multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty (20) Business Days and not more than thirty-thirty five (35) Business Days after the date of the Fundamental Change Company Repurchase Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the . If such Fundamental Change Repurchase Date is falls after an Interest Record Date a record date for the payment of interest and on or prior to the related corresponding Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 Company shall be equal to 100% of instead pay the principal amount to the Noteholders, and pay the full amount of Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase , if any, payable on such Interest Payment Date to the holder of a portion (less than all) record of its Notes only if the Notes on the Noteholder retains are in a Permitted Denominationclose of business on the corresponding record date. Repurchases of Notes under this Section 13.01 5.01 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 “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as Exhibit D thereto on or prior to the close of business on the Business Day immediately preceding the Fundamental Change 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 Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office Corporate Trust Office of the Trustee (or other Paying AgentAgent appointed by the Company) in the Borough of Manhattan, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 5.01 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 Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such notice. Any repurchase purchase by the Company contemplated pursuant to the provisions of this Section 13.01 5.01 shall be consummated by the payment delivery of the consideration to be received by the holder promptly following the later of the Fundamental Change Repurchase Price pursuant to Section 13.03(a)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 Fundamental Change Repurchase Notice contemplated by this Section 13.01 5.01 shall have the right to withdraw, in whole or in part, withdraw such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding prior to the Fundamental Change 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 13.025.02 below. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(b) On or before the fifteenth day after the occurrence of a Fundamental Change, the Company shall mail to all holders of record of the Notes a notice (the “Fundamental Change Notice”) of the occurrence of such Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. The Company shall also deliver a copy of the Fundamental Change Notice to the Trustee and cause a copy of such Fundamental Change Notice, or a summary of the information contained therein, to be published once in a newspaper of general circulation in The City of New York. Concurrently with the mailing of any Fundamental Change Notice, the Company shall issue a press release announcing such Fundamental Change referred to in the Fundamental Change 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 Fundamental Change Notice or any proceedings for the repurchase of any Note that any Noteholder may elect to have the Company repurchase as provided in this Section 5.01. Each Fundamental Change Notice shall specify the circumstances constituting the Fundamental Change, the Fundamental Change Repurchase Date and the Fundamental Change Repurchase Price, that the holder must exercise the repurchase right on or prior to the close of business on the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”), that the holder shall have the right to withdraw any Notes surrendered prior to the Fundamental Change Expiration Time, a description of the procedure which a Noteholder must follow to exercise such repurchase right and to withdraw any surrendered Notes, the place or places where the holder is to surrender such holder’s Notes and the CUSIP number or numbers of the Notes (if then generally in use) and include a form of Fundamental Change 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 5.01.
(c) Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option of the holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date.
Appears in 1 contract
Samples: First Supplemental Indenture (Molina Healthcare Inc)
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase for cash all of such holder’s Notes, or any portion thereof that is an integral multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty Business Days and not more than thirty-five Business Days after the date of on which the Company provides Noteholders the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest interest, including unpaid Additional Interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 shall be equal to 100% of the principal amount of Notes subject to repurchase and will not include any accrued and unpaid interest, including Additional Interest, if any. A Noteholder may require repurchase of a portion (less than all) of its Notes only if the Notes the Noteholder retains are in a Permitted Denomination. Repurchases of Notes under this Section 13.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Paying Agent by a holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as Exhibit D C thereto on or prior to the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such noticeappropriate Depositary procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 13.03(a). Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 13.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date in accordance with Section 13.02. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(b) On or before the twentieth calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall mail or cause to be mailed to all holders of record of the Notes a notice (the “Fundamental Change Company Notice”) of, and issue a press release in respect of (and make such press release available on its website), the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof. Such mailing shall be by first class mail. The Company shall also deliver a copy of the Fundamental Change Company Notice to the Trustee, the Paying Agent and the Conversion Agent within five Business Days after the effective date of the Fundamental Change. Simultaneously with the providing of such notice, the Company will also publish a notice containing the information set forth in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change, and whether the Fundamental Change is a Make-Whole Fundamental Change, in which case the effective date of the Make-Whole Fundamental Change;
(iii) the Fundamental Change Repurchase Price;
(iv) the Fundamental Change Repurchase Date;
(v) that the holder must exercise the repurchase right on or prior to the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”);
(vi) if applicable, the name and address of the Paying Agent and the Conversion Agent;
(vii) if applicable, the applicable Conversion Rate, and any adjustments to the applicable Conversion Rate;
(viii) if applicable, that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a holder may be converted only if the holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture;
(ix) that the holder shall have the right to withdraw any Notes surrendered prior to the Fundamental Change Expiration Time; and
(x) 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 13.01.
(c) Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option of the holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes).
(d) In connection with any purchase offer, the Company will:
(i) comply with the provisions of Rule 13e‑4, Rule 14e‑1 and any other tender offer rules under the Exchange Act, if required under the Exchange Act,
(ii) file a Schedule TO or any successor or similar schedule, if required under the Exchange Act, and
(iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to purchase the Notes. Notwithstanding anything to the contrary provided in this Indenture, compliance by the Company with Rule 13e‑4, Rule 14e‑1 and any other tender offer rule under the Exchange Act in accordance with clause (i) above, to the extent inconsistent with any other provision of this Indenture, will not, standing alone, constitute an Event of Default solely as a result of compliance by the Company with such rules. Notwithstanding the foregoing the Company shall not be required to repurchase the Notes in accordance with this Section 13.01 if a third party makes an offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 13.01 and purchases all Notes validly tendered and not withdrawn under such purchase offer.
Appears in 1 contract
Samples: Indenture (Liberty Media Corp)
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change occurs at any time prior to the Maturity Datetime, then each Noteholder shall have the right, at such holderNoteholder’s option, to require the Company Issuer to repurchase for cash all of such holderNoteholder’s Notes, Notes or any portion thereof that is an integral a multiple of $200,000 1,000 principal amount, for cash on the date (the “Fundamental Change Repurchase Date”) specified by the Company Issuer that is not less than twenty Business Days 15 days and not more than thirty-five Business Days 30 days after the date of the Fundamental Change Company Issuer 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 Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 shall be equal to 100% of the principal amount of Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase of a portion (less than all) of its Notes only if the Notes the Noteholder retains are in a Permitted Denomination. Repurchases of Notes under this Section 13.01 8.02 shall be made, at the option of the holder Holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the Issuer) by a holder Noteholder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as Exhibit D thereto on or prior to the close of business 10:00 a.m., (New York City time) on the Business Day immediately preceding prior to the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Issuer) at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office Corporate Trust Office of the Trustee (or other Paying AgentAgent appointed by the Issuer), such delivery being a condition to receipt by the holder Noteholder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 8.02 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Issuer) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 1,000 or an integral multiple thereof; and
(C) that the Notes are to be repurchased by the Company Issuer pursuant to the applicable provisions of the Notes and this Ninth Supplemental Indenture. Any repurchase by the Issuer contemplated pursuant to the provisions of this Section 8.02 shall be consummated by the delivery of the consideration to be received by the Noteholder promptly following the later of the Fundamental Change Repurchase Date and the time of the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Issuer) shall promptly notify the Issuer of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of Section 8.02(c). Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if the Issuer or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing), and the Issuer 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 twentieth day after the occurrence of any Fundamental Change, the Issuer shall provide to all Noteholders of record and the Trustee and Paying Agent a notice (the “Fundamental Change Issuer Notice”) of the occurrence of such Fundamental Change and of the repurchase right at the option of the Noteholders arising as a result thereof. Such mailing shall be by first-class mail. Simultaneously with providing such Fundamental Change Issuer Notice, the Issuer shall disseminate a press release through Dow Jxxxx & Company, Inc., Bloomberg Business News or PR Newswire containing the information included therein or publish such information in a newspaper of general circulation in The City of New York or publish such information on the Issuer’s web site or through such other public medium as the Issuer may use at such time. Each Fundamental Change Issuer Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) that the Noteholder must exercise the repurchase right by delivering to the Trustee on or prior to 10:00 a.m. (New York City time), on the Business Day prior to the Fundamental Change Repurchase Date the Fundamental Change Repurchase Notice;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the Paying Agent and the Conversion Agent;
(vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Noteholder may be converted only if the Noteholder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Ninth Supplemental Indenture; and
(ix) the procedures that Noteholders must follow to require the Issuer to repurchase their Notes. No failure of the 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 8.02.
(c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Issuer Notice at any time prior to 10:00 a.m. (New York City time) on the Business Day prior to the Fundamental Change Repurchase Date, specifying:
(i) The name of the holder;
(ii) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted;
(iii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes; and
(iv) the principal amount, if any, of such Notes that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; 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 2:00 p.m. (New York City time) on the second Business Day following the Fundamental Change Repurchase Notice must comply Date, the Issuer shall deposit with the Applicable Procedures and the Trustee (or other Paying Agent must receive such notice. Any repurchase appointed by the Company contemplated pursuant Issuer or if the Issuer is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance with the Original Indenture) an amount of money sufficient to repurchase on the Fundamental Change Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Issuer), payment for Notes surrendered for repurchase (and not withdrawn) prior to the provisions Close of this Section 13.01 shall Business on the Fundamental Change Repurchase Date will be consummated by made promptly after the later of (x) the Fundamental Change Repurchase Date with respect to such Note (provided the Noteholder has satisfied the conditions to the payment of the Fundamental Change Repurchase Price pursuant to in Section 13.03(a8.02). Notwithstanding anything herein , and (y) the time of book-entry transfer or the delivery of such Note to the contrary, any holder delivering Trustee (or other Paying Agent appointed by the Issuer) by the Holder thereof in the manner required by Section 8.02 by mailing checks for the amount payable to the Paying Agent Holders of such Notes entitled thereto as they shall appear in the 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 Issuer, but in no event later than one Business Day after the receipt of such written demand, return to the Issuer any funds in excess of the Fundamental Change Repurchase Notice contemplated Price.
(e) If the Trustee (or other Paying Agent appointed by this Section 13.01 shall have the right Issuer) holds money or securities sufficient to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business repurchase on the Business Day immediately preceding the Fundamental Change Repurchase Date all the Notes or portions thereof that are to be purchased as of the second Business Day following the Fundamental Change Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease to be Outstanding, (ii) interest 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, other than the right to receive the Fundamental Change Repurchase Price upon delivery of the Notes.
(f) To the extent legally required in connection with a repurchase of Notes under this Section 8.02, the Issuer will comply with the provisions of Rule 13e-4 and other tender offer rules under the Exchange Act then applicable, if any, and will file a Schedule TO or any other schedule required under the Exchange Act.
(g) The Issuer may arrange for a third party to purchase any Notes for which it receives a Fundamental Change Repurchase Notice in accordance with Section 13.028.02(a) that is not withdrawn pursuant to Section 8.02(c). The Paying Agent shall promptly notify If a third party purchases any Notes, interest will continue to accrue on such Notes and the Company of Notes will continue to be Outstanding after the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofDate and will be fungible with all other Notes then Outstanding.
Appears in 1 contract
Samples: Ninth Supplemental Indenture (National Retail Properties, Inc.)
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change (other than an Exempted Fundamental Change) at any time prior to the Maturity Date, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase for cash all of such holder’s Notes, or any portion thereof that is an integral multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty Business Days and not more than thirty-five Business Scheduled Trading Days after the date of on which the Company provides Noteholders the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest interest, including unpaid Additional Interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date on such Interest Payment Date and the Fundamental Change Repurchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 shall be equal to 100% of the principal amount of Notes subject to repurchase and will not include any accrued and unpaid interest, including Additional Interest, if any. A Noteholder may require repurchase of a portion (less than all) of its Notes only if the Notes the Noteholder retains are in a Permitted Denomination. Repurchases of Notes under this Section 13.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Paying Agent by a holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as Exhibit D C thereto on or prior to the close of business on the Business second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such noticeappropriate Depositary procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 13.03(a). Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 13.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date in accordance with Section 13.02. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(b) On or before the twentieth calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall mail or cause to be mailed to all holders of record of the Notes a notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof. The Company shall also deliver a copy of the Fundamental Change Company Notice to the Trustee, the Paying Agent and the Conversion Agent. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change, and whether the Fundamental Change is a Make-Whole Fundamental Change, in which case the effective date of the Make-Whole Fundamental Change;
(iii) the Fundamental Change Repurchase Price;
(iv) the Fundamental Change Repurchase Date;
(v) that the holder may exercise the repurchase right on or prior to the close of business on the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”);
(vi) if applicable, the name and address of the Paying Agent and the Conversion Agent;
(vii) if applicable, the applicable Conversion Rate, and any adjustments to the applicable Conversion Rate;
(viii) if applicable, that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a holder may be converted only if the holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture;
(ix) that the holder shall have the right to withdraw any Notes surrendered prior to the Fundamental Change Expiration Time; and
(x) 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 13.01.
(c) Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option of the holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes).
(d) In connection with any purchase offer, the Company will:
(i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act, if required under the Exchange Act,
(ii) file a Schedule TO or any successor or similar schedule, if required under the Exchange Act, and
(iii) otherwise comply in all material respects with all federal and state securities laws in connection with any offer by the Company to purchase the Notes. To the extent that the provisions of any securities laws or regulations enacted or adopted after the date of this Indenture conflict with the provisions of this Indenture relating to the Company’s obligations to repurchase the Notes upon a Fundamental Change, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under such provisions of this Indenture by virtue of such conflict.
(e) Notwithstanding anything to the contrary in this Section 13.01, the Company shall not be required to send a Fundamental Change Company Notice, or offer to repurchase or repurchase any Notes, as set forth in this Article 13, in connection with a Fundamental Change occurring pursuant to clause (b)(i) or clause (e) (or pursuant to clause (a) that also constitutes a Fundamental Change occurring pursuant to clause (b)(i) or clause (e)) of the definition thereof, if (i) such Fundamental Change constitutes a Specified Reference Property Event whose Reference Property consists entirely of cash in U.S. dollars, (ii) immediately after such Fundamental Change, the Notes become convertible (pursuant to Section 12.05 and, if applicable, Section 12.03) into consideration that consists solely of U.S. dollars in an amount per $1,000 principal amount of Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of Notes (calculated assuming that the same includes the maximum amount of accrued but unpaid interest payable as part of the Fundamental Change Repurchase Price for such Fundamental Change); and (iii) the Company timely sends the notice relating to such Fundamental Change required pursuant to Section 12.01(b)(iv). Any Fundamental Change with respect to which, in accordance with the provisions described in this Section 13.01(e), the Company is not required to offer to repurchase any Notes is referred to as herein as an “Exempted Fundamental Change.” Notwithstanding anything to the contrary provided in this Indenture, compliance by the Company with Rule 13e-4, Rule 14e-1 and any other tender offer rule under the Exchange Act in accordance with clause (i) above, to the extent inconsistent with any other provision of this Indenture, will not, standing alone, constitute an Event of Default solely as a result of compliance by the Company with such rules. Notwithstanding the foregoing the Company shall not be required to repurchase the Notes in accordance with this Section 13.01 if a third party makes an offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 13.01 and purchases all Notes validly tendered and not withdrawn under such purchase offer.
Appears in 1 contract
Samples: Indenture (Sirius Xm Holdings Inc.)
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase for cash all of such holder’s Notes, or any portion thereof that is an integral a multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Purchase Date”) specified by the Company that is not less than twenty Business Days and not more than thirty-five Business Days after the date of the Fundamental Change 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 Fundamental Change Repurchase Purchase Date (the “Fundamental Change Repurchase Purchase Price”), unless the Fundamental Change Repurchase Purchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Purchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 15 shall be equal to 100% of the principal amount of Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase of a portion (less than all) of its Notes only if the Notes the Noteholder retains are in a Permitted Denomination. Repurchases of Notes under this Section 13.01 15.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Paying Agent by a holder of a duly completed notice (the “Fundamental Change Repurchase Purchase Notice”) in the form set forth on the reverse of the Note as Attachment 2 of Exhibit D A thereto on or prior to the close of business on the Business Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Purchase Notice (together with all necessary endorsements) at the office of the Paying Agent, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Purchase Price therefor; provided that such Fundamental Change Repurchase Purchase Price shall be so paid pursuant to this Section 13.01 15.01 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Purchase Notice. The Fundamental Change Repurchase Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 1,000 or an integral a multiple thereof; and
(C) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Purchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such noticeappropriate Depositary procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 15.01 shall be consummated by the payment of the Fundamental Change Repurchase Purchase Price pursuant to Section 13.03(a15.03(a). Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Purchase Notice contemplated by this Section 13.01 15.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Purchase Notice at any time prior to the close of business on the Business Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Purchase Date in accordance with Section 13.0215.02. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Purchase Notice or written notice of withdrawal thereof.
(b) On or before the twentieth calendar day after the occurrence of a Fundamental Change, the Company shall provide or cause to be provided to all holders of record of the Notes and the Trustee and Paying Agent a notice (the “Fundamental Change Company Notice”) of the effective date of the Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change, and whether the Fundamental Change is a Make-Whole Fundamental Change, in which case the Effective Date of the Make-Whole Fundamental Change;
(iii) the last date on which a holder may exercise the repurchase right pursuant to this Article 15;
(iv) the Fundamental Change Purchase Price;
(v) the Fundamental Change Purchase Date;
(vi) if applicable, the name and address of the Paying Agent and the Conversion Agent;
(vii) if applicable, the applicable Conversion Rate, and any adjustments to the applicable Conversion Rate resulting from the Fundamental Change;
(viii) if applicable, that the Notes with respect to which a Fundamental Change Purchase Notice has been delivered by a holder may be converted only if the holder withdraws the Fundamental Change Purchase Notice in accordance with the terms of this Indenture;
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Scheduled Trading Day immediately preceding the Fundamental Change Purchase Date (the “Fundamental Change Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Fundamental Change 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 15.01.
(c) Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option of the holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Purchase Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Purchase Price with respect to such Notes).
(d) In connection with any purchase offer, the Company will:
(i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other applicable tender offer rules under the Exchange Act, if and to the extent required under the Exchange Act,
(ii) file a Schedule TO or any successor or similar schedule, if and to the extent required under the Exchange Act, and
(iii) otherwise comply in all material respects with all applicable federal and state securities laws in connection with any offer by the Company to purchase the Notes.
Appears in 1 contract
Samples: Indenture (Eastman Kodak Co)
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall have the right, at such holderNoteholder’s option, to require the Company to repurchase for cash all of such holderNoteholder’s Notes, or any portion thereof that is an integral multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) ), specified by the Company that is not less than twenty 20 Business Days and not more than thirty-five 35 Business Days after the date on which the Company provides the Fundamental Change Company Notice (or, if the Company fails to specify a Fundamental Change Repurchase Date, the 35th Business Day following the date of the Fundamental Change Company Notice (as defined belowNotice, without prejudice to any rights or remedies Noteholders may have on account of such failure) at a cash repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest interest, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes Noteholders as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder Noteholder surrendering the Note for repurchase pursuant to this Article 13 19 shall be equal to 100% of the principal amount of Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase of a portion (less than all) of its Notes only if the Notes the Noteholder retains are in a Permitted Denominationrepurchase. Repurchases of Notes under this Section 13.01 19.02 shall be made, at the option of the holder Noteholder thereof, upon:
(i) delivery to the Paying Agent by a holder Noteholder of a duly completed notice (the “Fundamental Change Repurchase Notice”) ), in the form set forth on the reverse of the Note as Exhibit D thereto on or prior to the close 5:00 p.m., New York City time, of business on the Business Day immediately preceding the Fundamental Change Repurchase DateDate (the “Fundamental Change Expiration Time”); and
(ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office Corporate Trust Office of the Paying AgentAgent in The Borough of Manhattan, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 19.02 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this the Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such noticeappropriate Depositary procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 19.02 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 13.03(a). Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 13.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding later of the Fundamental Change Repurchase Date in accordance with Section 13.02. The Paying Agent shall promptly notify and the Company time of the receipt by it book-entry transfer or delivery of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthe Note as described in Section 19.04(a).
Appears in 1 contract
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase for cash all of such holder’s Notes, or any portion thereof that is an integral multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty Business Days and not more than thirty-five Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest interest, including unpaid Additional Interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 Section 16.04 shall be equal to 100% of the principal amount of the Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase of a portion (less than all) of its Notes only , including Additional Interest, if the Notes the Noteholder retains are in a Permitted Denominationany. Repurchases of Notes under this Section 13.01 16.04 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Paying Agent by a holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as Exhibit D C thereto on or prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 16.04 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such noticeappropriate Depositary procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 16.04 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 13.03(a16.06(a). Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 13.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date in accordance with Section 13.02. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
Appears in 1 contract
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase for cash all of such holder’s Notes, or any portion thereof that is an integral multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty Business Days and not more than thirty-five Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest interest, including unpaid Additional Interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 Section 16.04 shall be equal to 100% of the principal amount of the Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase of a portion (less than all) of its Notes only , including Additional Interest, if the Notes the Noteholder retains are in a Permitted Denominationany. Repurchases of Notes under this Section 13.01 16.04 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Paying Agent by a holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as Exhibit D thereto on or prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 16.04 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such noticeappropriate Depositary procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 16.04 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 13.03(a16.06(a). Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 13.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date in accordance with Section 13.02. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
Appears in 1 contract
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to the Maturity DateStated Maturity, then each Noteholder shall have the right, at such holderHolder’s option, to require the Company to repurchase for cash cash, shares of the Company’s Common Stock or a combination thereof, at the Company’s election, all of such holderHolder’s Notes, or any portion thereof that is an integral multiple of $200,000 principal amount1,000 xxxxxxxxx xxxxxx, on the xx xhe date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty Business Days and not more later than thirty-five Business Days after the date of the Fundamental Change 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 Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest (including Additional Interest, if any) accrued to the Interest Payment Date will be paid to holders Holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder Holder surrendering the Note for repurchase pursuant to this Article 13 Section 11.02 shall be equal to 100% of the principal amount of Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase of a portion interest (less than all) of its Notes only including Additional Interest, if the Notes the Noteholder retains are in a Permitted Denominationany). Repurchases of Notes under this Section 13.01 11.02 shall be made, at the option of the holder Holder thereof, upon:
(i) delivery to the Paying Agent by a holder Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as (Exhibit D thereto hereto) on or prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law; and
(ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of on or prior to the Business Day immediately preceding the Fundamental Change Repurchase Notice Date (together with all necessary endorsements) at the office of the Paying Agent, such delivery being a condition to receipt by the holder Holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 11.02 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such noticeappropriate Depositary procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 11.02 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 13.03(a11.02(f). Notwithstanding anything herein to the contrary, any holder Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 13.01 11.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close Close of business Business on the Business Day immediately preceding the Fundamental Change Repurchase Date in accordance with Section 13.0211.02(e). The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(b) On or before the twentieth calendar day after the effective date of a Fundamental Change, the Company shall provide or cause to be provided to all Holders of record of the Notes and the Trustee and the Paying Agent a notice (the “Fundamental Change Company Notice”) of, and issue a press release (and make such press release available on the Company’s website) in respect of, the occurrence of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof. The Company shall also deliver a copy of the Fundamental Change Company Notice to the Trustee, the Paying Agent and the Conversion Agent within five Business Days after the effective date of the Fundamental Change. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change, and if the Fundamental Change is a Make-Whole Fundamental Change, the Effective Date of the Make-Whole Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right pursuant to this Section 11.02;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) whether the Company elects to pay the Fundamental Change Repurchase Price in cash, shares of Common Stock or a combination thereof, specifying the percentage or amounts of each; provided, however, that if no election is made by the Company, the Company shall be deemed to have elected to pay the Fundamental Change Repurchase Price in cash;
(vii) the name and address of the Paying Agent and the Conversion Agent;
(viii) the applicable Conversion Rate, and any adjustments to the applicable Conversion Rate resulting from the Fundamental Change;
(ix) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture;
(x) that the Holder must exercise the repurchase right on or prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”);
(xi) that the Holder shall have the right to withdraw any Notes surrendered prior to the Fundamental Change Expiration Time; and
(xii) 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 11.02.
(c) Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option of the Holders upon a Fundamental Change Repurchase Date if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes).
(d) In connection with any purchase of Notes on a Fundamental Change Repurchase Date, the Company will:
(i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other applicable tender offer rules under the Exchange Act, if required under the Exchange Act,
(ii) file a Schedule TO or any successor or similar schedule, if required under the Exchange Act, and
(iii) otherwise comply with all applicable federal and state securities laws in connection with any offer by the Company to purchase the Notes. Notwithstanding anything to the contrary provided in this Indenture, compliance by the Company with Rule 13e-4, Rule 14e-1 and any other tender offer rule under the Exchange Act in accordance with clause (i) above, to the extent inconsistent with any other provision of this Indenture, will not, standing alone, constitute an Event of Default solely as a result of compliance by the Company with such rules. Notwithstanding the foregoing, the Company shall not be required to repurchase the Notes in accordance with this Section 11.02 if a third party makes an offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 11.02 and purchases all Notes validly tendered and not withdrawn under such purchase offer. If the third party agrees to purchase the Notes upon a Fundamental Change but does not timely make payment of the Fundamental Change Repurchase Price on the Fundamental Change Repurchase Date, the Company shall be required to purchase all Notes validly tendered and not withdrawn on the Fundamental Change Repurchase Date.
(e) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Corporate Trust Office (as defined in Section 1.01 of the Indenture) of the Paying Agent in accordance with this Section 11.02(e) at any time prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:
(i) the principal amount of the Note with respect to which such notice of withdrawal is being submitted,
(ii) the certificate number, if any, of the Note in respect of which such notice of withdrawal is being submitted, or the appropriate Depositary information if the Note in respect of which such notice of withdrawal is being submitted is represented by a Global Note, and
(iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not in certificated form, Noteholders must comply with appropriate Depositary procedures.
(f) 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) on or prior to 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date an amount of cash sufficient to repurchase all of the Notes to be repurchased at the appropriate Fundamental Change 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 Fundamental Change Expiration Time) will be made on the later of (i) the Fundamental Change Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions in Section 11.02) and (ii) 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 11.02 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 Fundamental Change Repurchase Price.
(g) If by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the Trustee (or other Paying Agent appointed by the Company) holds money or securities sufficient to make payment on all the Notes or portions thereof that are to be repurchased as a result of the corresponding Fundamental Change, then (i) such Notes tendered for repurchase and not withdrawn will cease to be outstanding, (ii) interest, including Additional Interest, if any, will cease to accrue on such Notes on the Fundamental Change Repurchase Date, and (iii) all other rights of the Holders with respect to such Notes tendered for repurchase and not withdrawn will terminate on the Fundamental Change Repurchase Date (other than the right to receive the Fundamental Change Repurchase Price, and previously accrued but unpaid interest, including Additional Interest, if any, upon delivery of the 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.
(h) Upon surrender of a Note that is to be repurchased in part pursuant to Section 11.02, the Company shall execute and the Trustee shall authenticate and deliver to the Holder a new Note in an authorized denomination equal in principal amount to the unrepurchased portion of the Note surrendered.
(i) If the Company elects to pay all or a part of the Fundamental Change Repurchase Price in shares of Common Stock, the Company shall deliver to the Paying Agent on or prior to the Fundamental Change Repurchase Date, a number of shares of Common Stock equal to the aggregate Fundamental Change Repurchase Price to be paid in Common Stock divided by the average of the Daily VWAP of the Common Stock for the twenty consecutive Trading Days ending on the Trading Day prior to the Fundamental Change Repurchase Date. The Company shall not issue fractional shares of Common Stock upon repurchase of the Notes. Instead, the Company shall, at its election, either (i) pay cash in lieu of fractional shares based on the Daily VWAP of the Common Stock on the Trading Day prior to the Fundamental Change Repurchase Date or (ii) increase the number of shares of Common Stock deliverable upon repurchase of the Notes to the next whole share. If the Common Stock has been replaced by Reference Property prior to the Fundamental Change Repurchase Date, the number of shares of Common Stock otherwise deliverable on such date will instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in the relevant Merger Event. The Company shall not pay any portion of the Fundamental Change Repurchase Price in shares of Common Stock (or Reference Property, if applicable) unless the shares of Common Stock (or Reference Property, if applicable) to be issued and delivered may be publicly resold by holders that are not affiliates of the Company without registration under the Securities Act or if the Company has filed an effective shelf registration statement for the sale of such shares of Common Stock (or Reference Property, if applicable).
Appears in 1 contract
Samples: Indenture (Ual Corp /De/)
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase for cash all of such holder’s Notes, or any portion thereof that is an integral multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty Business Days and not more than thirty-thirty five Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest interest, including unpaid Additional Interest, if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 16 shall be equal to 100% of the principal amount of Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase of a portion (less than all) of its Notes only if the Notes the Noteholder retains are in a Permitted Denominationrepurchase. Repurchases of Notes under this Section 13.01 16.02 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Paying Agent by a holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note as Exhibit D C thereto on or prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office Corporate Trust Office of the Paying AgentAgent in The Borough of Manhattan, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 13.01 16.02 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such noticeappropriate Depositary procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 16.02 shall be consummated by the payment of the Fundamental Change Repurchase Price pursuant to Section 13.03(a). Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 13.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding later of the Fundamental Change Repurchase Date in accordance with Section 13.02. The Paying Agent shall promptly notify and the Company time of the receipt by it book-entry transfer or delivery of any Fundamental Change Repurchase Notice or written notice of withdrawal thereofthe Note as described in Section 16.04(a).
Appears in 1 contract
Samples: Indenture (Sothebys)
Repurchase at Option of Noteholders upon a Fundamental Change. (1a) If there shall occur a Fundamental Change at any time prior to the Maturity Date, then each Noteholder shall have the right, at such holder’s option, to require the Company to repurchase for cash all of such holder’s Notes, or any portion thereof that is an integral multiple of $200,000 1,000 principal amount, on the date (the “Fundamental Change Repurchase Purchase Date”) specified by the Company that is not less than twenty Business Days and not more than thirty-five Business Days after the date of the Fundamental Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid interest (including any Additional Interest), thereon to, but excluding, the Fundamental Change Repurchase Purchase Date (the “Fundamental Change Repurchase Purchase Price”), unless the Fundamental Change Repurchase Purchase Date is after an Interest Record Date and on or prior to the related Interest Payment Date, in which case interest accrued to the Interest Payment Date will be paid to holders of the Notes as of the preceding Interest Record Date and the Fundamental Change Repurchase Purchase Price payable to the holder surrendering the Note for repurchase pursuant to this Article 13 Section 13.01 shall be equal to 100% of the principal amount of the Notes subject to repurchase and will not include any accrued and unpaid interest. A Noteholder may require repurchase of a portion interest (less than all) of its Notes only if the Notes the Noteholder retains are in a Permitted Denominationincluding any Additional Interest). Repurchases of Notes under this Section 13.01 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Paying Agent by a holder of a duly completed notice (the “Fundamental Change Repurchase Purchase Notice”) in the form set forth on the reverse of the Note as Exhibit D thereto C hereto on or prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Purchase Notice (together with all necessary endorsements) at the office of the Paying Agent, such delivery being a condition to receipt by the holder of the Fundamental Change Repurchase Purchase Price therefor; provided that such Fundamental Change Repurchase Purchase Price shall be so paid pursuant to this Section 13.01 only if the Note so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Purchase Notice. The Fundamental Change Repurchase Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be delivered for repurchase;
(B) the portion of the principal amount of Notes to be repurchased, which must be $200,000 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 this Indenture; provided, however, that if the Notes are not in certificated form, the Fundamental Change Repurchase Purchase Notice must comply with the Applicable Procedures and the Paying Agent must receive such noticeappropriate Depositary procedures. Any repurchase by the Company contemplated pursuant to the provisions of this Section 13.01 shall be consummated by the payment of the Fundamental Change Repurchase Purchase Price pursuant to Section 13.03(a). Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Purchase Notice contemplated by this Section 13.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Purchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Purchase Date in accordance with Section 13.0213.02 below. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Purchase Notice or written notice of withdrawal thereof.
(b) On or before the twentieth calendar day after the occurrence of a Fundamental Change, the Company shall provide notice to holders of record of the Notes (and to beneficial owners if required by applicable law) (the “Fundamental Change Company Notice”) of the occurrence of the Fundamental Change and of the repurchase right at the option of the holders arising as a result thereof. The Company shall also deliver a copy of the Fundamental Change Company Notice to the Trustee, the Paying Agent and the Conversion Agent within five Business Days after the effective date of the Fundamental Change. Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the effective date of the Fundamental Change, and, whether the Fundamental Change is a Make-Whole Fundamental Change, in which case the effective date of the Make-Whole Fundamental Change;
(iii) the last date on which a holder may exercise the repurchase right pursuant to this Section 13.01;
(iv) the Fundamental Change Purchase Price;
(v) the Fundamental Change Purchase Date;
(vi) if applicable, the name and address of the Paying Agent and the Conversion Agent;
(vii) if applicable, the applicable Conversion Rate, and any adjustments to the applicable Conversion Rate;
(viii) if applicable, that the Notes with respect to which a Fundamental Change Purchase Notice has been delivered by a holder may be converted only if the holder withdraws the Fundamental Change Purchase Notice in accordance with the terms of this Indenture;
(ix) that the holder must exercise the repurchase right on or prior to the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date (the “Fundamental Change Expiration Time”);
(x) that the holder shall have the right to withdraw any Notes surrendered prior to the Fundamental Change 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 a Fundamental Change Company Notice 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 13.01.
(c) Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option of the holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Purchase Date (except in the case of an acceleration resulting from a default by the Company in the payment of the Fundamental Change Purchase Price with respect to such Notes).
(d) In connection with any purchase offer, the Company will:
(i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act, if required under the Exchange Act,
(ii) file a Schedule TO or any successor or similar schedule, if required under the Exchange Act, and
(iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to purchase the Notes. Notwithstanding anything to the contrary provided in this Indenture, compliance by the Company with Rule 13e-4, Rule 14e-1 and any other tender offer rule under the Exchange Act in accordance with clause (i) above, to the extent inconsistent with any other provision of this Indenture, will not, standing alone, constitute an Event of Default solely as a result of compliance by the Company with such rules. Notwithstanding the foregoing the Company shall not be required to repurchase the Notes in accordance with this Section 13.01 if a third party makes an offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 13.01 and purchases all Notes validly tendered and not withdrawn under such purchase offer.
Appears in 1 contract
Samples: Indenture (Kaman Corp)
