Repurchase at the Option of Holders. If a Change of Control Event occurs, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make an offer to purchase all of the Securities pursuant to the offer described below (the “Change of Control Offer”) at a price in cash (the “Change of Control Payment”) equal to 101.0% of the aggregate principal amount of the Securities, together with accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information: (1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company; (2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest; (4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date; (5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased; (6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof; (7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and (8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law: (1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer; (2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and (3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenture.
Appears in 6 contracts
Samples: Global Security Agreement (Fiat Chrysler Automobiles N.V.), Global Security Agreement (Fiat Chrysler Automobiles N.V.), Indenture (Fiat Chrysler Automobiles N.V.)
Repurchase at the Option of Holders. If a Change of Control Triggering Event occurs, unless the Company shall has exercised its right to redeem the Senior Notes, Holders of Senior Notes will have previously or concurrently mailed a redemption notice with respect the right to all the then Outstanding Securities pursuant to Clause A and Clause B above, require the Company shall make to repurchase all or any part (equal to $2,000 or an offer to purchase all integral multiple of the Securities $1,000 in excess thereof) of their Senior Notes pursuant to the offer described below (the “Change of Control Offer”) at a price ). In the Change of Control Offer, the Company shall offer payment in cash equal to 101% of the aggregate principal amount of Senior Notes repurchased plus accrued and unpaid interest, if any, on the Senior Notes repurchased, to the date of purchase (the “Change of Control Payment”) equal to 101.0% of the aggregate principal amount of the Securities, together with accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date). In connection with any Change of Control Event (but not later than Within 30 days following any Change of Control Event)Triggering Event or, at the option of the Company, prior to any Change of Control, but after public announcement of the transaction or transactions that constitute or may constitute the Change of Control, the Company shall send mail a notice to Holders of such Senior Notes describing the transaction or transactions that constitute or may constitute the Change of Control Offer by first-class mail, with a copy Triggering Event and offering to repurchase the Trustee, Senior Notes on the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing date specified in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase datenotice, which shall date will be no earlier than 30 days nor and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding , pursuant to the procedures required by the Indenture and continue to accrue interest;
(4) that unless the Company defaults described in the payment of such notice, which offer will constitute the Change of Control PaymentOffer. The notice will, all Securities accepted if mailed prior to the date on which the Change of Control occurs, state that the Change of Control Offer is conditioned on the Change of Control Triggering Event occurring on or prior to the applicable Change of Control Payment Date. On the Change of Control Payment Date, the Company shall be required, to the extent lawful, to:
(a) accept for payment all Senior Notes or portions of Senior Notes properly tendered pursuant to the Change of Control Offer shall cease Offer;
(b) deposit with the paying agent an amount equal to accrue interest on the Change of Control Payment Date;in respect of all Senior Notes or portions of Senior Notes properly tendered; and
(5c) that Holders deliver or cause to be delivered to the Trustee the Senior Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Senior Notes or portions of Senior Notes being purchased. The Company shall not be entitled required to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the make a Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to Offer upon the occurrence of a Change of Control EventTriggering Event if a third party makes such an offer in the manner, stating that at the Change of Control Offer is conditional on times and otherwise in compliance with the occurrence of such Change of Control Event; and
(8) other instructions, as determined requirements for an offer made by the CompanyCompany and the third party repurchases all Senior Notes properly tendered and not withdrawn under its offer. In addition, consistent with the covenant described hereunder, that Company shall not be required to repurchase any Senior Notes if it has given written notice of a Holder must follow to tender its Securitiesredemption in whole of the Senior Notes. The Company shall comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws or and regulations are applicable in connection with the repurchase of Securities pursuant to the Senior Notes as a result of a Change of Control OfferTriggering Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of the Indenture or the SecuritiesIndenture, the Company shall be required to comply with the applicable securities laws and regulations and shall will not be deemed to have breached the Company’s its obligations described in the Indenture and the Securities under this Article VII by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenturecompliance.
Appears in 6 contracts
Samples: Fourth Supplemental Trust Indenture (Macy's, Inc.), Third Supplemental Trust Indenture (Macy's, Inc.), Sixth Supplemental Trust Indenture (Macy's, Inc.)
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuer shall be required to offer to purchase on the Change of Control Purchase Date all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, premium and Additional Amounts, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant record dates to receive interest due on the relevant interest payment date), provided that the Issuer shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A Section 6, “Optional Redemption,” or Section 7, “Redemption upon Changes in Withholding Taxes,” of this Note. The Issuer shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Issuer shall, within 20 Business Days, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as a multiple of $1,000) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Issuer may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of Notes and the then Outstanding Securities under principal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the Indentureamount of Excess Proceeds will be reset to zero.
Appears in 3 contracts
Samples: Indenture (Digicel Group LTD), Indenture (Digicel Group LTD), Indenture (Digicel Group LTD)
Repurchase at the Option of Holders. If a Change of Control Triggering Event occurs, unless the Company shall has exercised its right to redeem the Senior Notes, Holders of Senior Notes will have previously or concurrently mailed a redemption notice with respect the right to all the then Outstanding Securities pursuant to Clause A and Clause B above, require the Company shall make to repurchase all or any part (equal to $2,000 or an offer to purchase all integral multiple of the Securities $1,000 in excess thereof) of their Senior Notes pursuant to the offer described below (the “"Change of Control Offer”) at a price in cash ("). In the “Change of Control Payment”) Offer, the Company shall offer payment in cash equal to 101.0101% of the aggregate principal amount of the Securities, together with Senior Notes repurchased plus accrued and unpaid interest, if any, on the Senior Notes repurchased, to the date of purchase, subject to purchase (the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any "Change of Control Event (but not later than Payment"). Within 30 days following any Change of Control Triggering Event), the Company shall send mail a notice to Holders of such Senior Notes describing the transaction or transactions that constitute the Change of Control Offer by first-class mail, with a copy Triggering Event and offering to repurchase the Trustee, Senior Notes on the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing date specified in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase datenotice, which shall date will be no earlier than 30 days nor and no later than 60 days from the date such notice is mailed (the “"Change of Control Payment Date”");
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined procedures required by the Company, consistent with the covenant Indenture and described hereunder, that a Holder must follow to tender its Securitiesin such notice. The Company shall comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws or and regulations are applicable in connection with the repurchase of Securities pursuant to the Senior Notes as a result of a Change of Control OfferTriggering Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of the Indenture or the SecuritiesIndenture, the Company shall be required to comply with the applicable securities laws and regulations and shall will not be deemed to have breached the Company’s its obligations described in the Indenture and the Securities under this Article VII by virtue thereofof such conflicts. On the Change of Control Payment Date, the Company shallshall be required, to the extent permitted by lawlawful, to:
(1a) accept for payment all Securities Senior Notes or portions thereof of Senior Notes properly tendered pursuant to the Change of Control Offer;
(2b) deposit with the Paying Agent paying agent an amount equal to the aggregate Change of Control Payment in respect of all Securities Senior Notes or portions thereof so of Senior Notes properly tendered; and
(3c) deliver, deliver or cause to be delivered, delivered to the Trustee for cancellation the Securities so Senior Notes properly accepted together with an Officer’s Officers' Certificate to stating the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in aggregate principal amount of the then Outstanding Securities under the IndentureSenior Notes or portions of Senior Notes being purchased.
Appears in 2 contracts
Samples: Fourth Supplemental Trust Indenture (Macy's, Inc.), First Supplemental Trust Indenture (Federated Department Stores Inc /De/)
Repurchase at the Option of Holders. Subject to the additional terms and conditions set forth in the Supplemental Indenture:
(a) If a Change of Control Event occurs, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall Issuers will make an offer to purchase all of the Securities pursuant to the offer described below (the a “Change of Control Offer”) to each Holder of Notes to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securities, together with Notes repurchased plus accrued and unpaid interest, if anyinterest on the Notes repurchased, to the date of purchase, subject to the right rights of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Interest Payment Date (the “Change of Control Event (but not later than Payment”). Within 30 days following any Change of Control Event)Control, the Company shall Issuers will send a notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of describing the Securities to the address of such Holder appearing in the security register, transaction or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) transactions that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of constitute the Change of Control Payment, all Securities accepted for payment pursuant to and setting forth the procedures governing the Change of Control Offer shall cease as required by the Supplemental Indenture. The Holder of this Note may elect to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission have this Note or a letter setting forth portion thereof in an authorized denomination purchased by completing the name form entitled “Option of the Holder of the Securities, the principal amount of such Securities tendered for purchase, to Elect Purchase” attached hereto and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered tendering this Note pursuant to the Change of Control Offer;.
(2b) deposit If Suburban Propane or any of its Restricted Subsidiaries consummates any Asset Sale, in certain circumstances specified in Section 10.11 of the Supplemental Indenture, the Issuers will commence an offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Paying Agent an amount equal Notes containing provisions similar to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements those set forth in the Supplemental Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (an “Asset Sale Offer”) pursuant to Section 11.10 of the Supplemental Indenture to purchase the maximum principal amount of Notes and other pari passu Indebtedness that may be purchased out of the Securities applicable Excess Proceeds. The offer price in any Asset Sale Offer will be equal to a Change 100% of Control Offer made by the Company principal amount thereof plus accrued and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything unpaid interest, to the contrary hereindate of purchase, a Change of Control Offer may and will be made payable in advance of a Change of Control Event, conditional upon cash in accordance with the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as procedures set forth in Clause K belowthe Supplemental Indenture. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the provisions Issuers may use those Excess Proceeds for any purpose not otherwise prohibited by the Supplemental Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee, subject to the procedures of DTC, will select the Notes and the Issuers will select such other pari passu Indebtedness to be purchased on a pro rata basis provided that the Notes held in the Indenture and form of global certificates will be selected in accordance with procedures of DTC. Holders of Notes that are the Securities relative to the Company’s obligation to make subject of an offer to repurchase purchase will receive an Asset Sale Offer from the Securities as a result Issuers prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the IndentureHolder to Elect Purchase” attached hereto.
Appears in 2 contracts
Samples: Third Supplemental Indenture (Suburban Propane Partners Lp), Second Supplemental Indenture (Suburban Propane Partners Lp)
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuer shall be required to offer to purchase on the Change of Control Purchase Date all or any part (equal to $1,000 or an integral multiple thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, premium and Additional Amounts, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant record dates to receive interest due on the relevant interest payment date), provided that the Issuer shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A Section 6, “Optional Redemption,” or Section 7, “Redemption upon Changes in Withholding Taxes,” of this Note. The Issuer shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders of the Notes must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Issuer shall, within 20 Business Days, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as a multiple of $1,000) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds, provided, however, that if an Excess Proceeds Offer to repay or repurchase any Debt of any Restricted Subsidiary of the Issuer is made in accordance with the terms of such Debt, the obligation to permanently reduce Debt of a Restricted Subsidiary will be deemed to be satisfied to the extent of the amount of the Excess Proceeds Offer, whether or not accepted by the holders thereof, and no Excess Proceeds in the amount of such Excess Proceeds Offer will be deemed to exist following such Excess Proceeds Offer. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Issuer may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of Notes and the then Outstanding Securities under principal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the Indentureamount of Excess Proceeds will be reset to zero.
Appears in 2 contracts
Samples: Indenture (Digicel Group LTD), Indenture (Digicel Group LTD)
Repurchase at the Option of Holders. If a Change of Control Triggering Event occurs, unless the Company shall has exercised its right to redeem the Senior Notes, Holders of Senior Notes will have previously or concurrently mailed a redemption notice with respect the right to all the then Outstanding Securities pursuant to Clause A and Clause B above, require the Company shall make to repurchase all or any part (equal to $2,000 or an offer to purchase all integral multiple of the Securities $1,000 in excess thereof) of their Senior Notes pursuant to the offer described below (the “"Change of Control Offer”) at a price in cash ("). In the “Change of Control Payment”) Offer, the Company shall offer payment in cash equal to 101.0101% of the aggregate principal amount of the Securities, together with Senior Notes repurchased plus accrued and unpaid interest, if any, on the Senior Notes repurchased, to the date of purchase, subject to purchase (the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any "Change of Control Event (but not later than Payment"). Within 30 days following any Change of Control Triggering Event), the Company shall send mail a notice to Holders of such Senior Notes describing the transaction or transactions that constitute the Change of Control Offer by first-class mail, with a copy Triggering Event and offering to repurchase the Trustee, Senior Notes on the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing date specified in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase datenotice, which shall date will be no earlier than 30 days nor and no later than 60 days from the date such notice is mailed (the “"Change of Control Payment Date”");
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined procedures required by the Company, consistent with the covenant Indenture and described hereunder, that a Holder must follow to tender its Securitiesin such notice. The Company shall comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws or and regulations are applicable in connection with the repurchase of Securities pursuant to the Senior Notes as a result of a Change of Control OfferTriggering Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of the Indenture or the SecuritiesIndenture, the Company shall be required to comply with the applicable securities laws and regulations and shall will not be deemed to have breached the Company’s its obligations described in the Indenture and the Securities under this Article VII by virtue thereofof such conflicts. On the Change of Control Payment Date, the Company shallshall be required, to the extent permitted by law:
(1) lawful, to: accept for payment all Securities Senior Notes or portions thereof of Senior Notes properly tendered pursuant to the Change of Control Offer;
(2) ; deposit with the Paying Agent paying agent an amount equal to the aggregate Change of Control Payment in respect of all Securities Senior Notes or portions thereof so of Senior Notes properly tendered; and
(3) deliver, and deliver or cause to be delivered, delivered to the Trustee for cancellation the Securities so Senior Notes properly accepted together with an Officer’s Officers' Certificate to stating the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in aggregate principal amount of the then Outstanding Securities under the IndentureSenior Notes or portions of Senior Notes being purchased.
Appears in 2 contracts
Samples: Second Supplemental Trust Indenture (Federated Department Stores Inc /De/), Third Supplemental Trust Indenture (Federated Department Stores Inc /De/)
Repurchase at the Option of Holders. If Asset Sales
(a) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(i) the Issuer (or the Restricted Subsidiary, as the case may be) receives consideration in respect of such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(ii) at least 50% of the consideration therefor received by the Issuer or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Issuer’s or such Restricted Subsidiary’s most recently available annual or quarterly balance sheet, of the Issuer or any of its Restricted Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by the transferee of any such assets pursuant to a Change customary novation agreement or similar agreement that releases the Issuer or such Restricted Subsidiary from further liability;
(B) any notes or other obligations received by the Issuer or any such Restricted Subsidiary in such Asset Sale that are converted within 365 days by the Issuer or such Restricted Subsidiary into cash, to the extent of Control Event occursthe cash received in that conversion.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, unless the Company shall have previously Issuer or concurrently mailed its Restricted Subsidiaries may apply an amount equal to such Net Proceeds to, at its option, any combination of the following purposes:
(i) to permanently repay, prepay, redeem, purchase or repurchase Indebtedness of the Issuer or any of its Restricted Subsidiaries secured by a redemption notice Lien and, if the Indebtedness so repaid is revolving credit Indebtedness, to correspondingly permanently reduce commitments with respect thereto; or
(ii) to all reinvest in new assets and make any capital expenditure in or that is used or useful in a Permitted Business or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets), provided that (A) such capital expenditure or purchase is consummated within the then Outstanding Securities pursuant later of (x) 365 days after the receipt of the Net Proceeds from the related Asset Sale and (y) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A) of this Section 6.15(b)(ii) the amount not so applied will be deemed to Clause A and Clause B abovebe Excess Proceeds (as defined below).
(c) Pending the final application of any such Net Proceeds, the Company shall Issuer may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraphs will constitute “Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $10.0 million, then within ten Business Days after such date, the Issuer will make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Asset Sale Offer”) at a price in cash (to all Holders of Notes to purchase the “Change of Control Payment”) equal to 101.0% of the aggregate maximum principal amount of Notes that may be purchased out of the Securities, together with Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, interest to the date of purchase, subject and will be payable in cash. The Issuer may satisfy the foregoing obligation with respect to such Excess Proceeds from an Asset Sale by making an Asset Sale Offer in advance of being required to do so by this Indenture (an “Advance Offer”) with respect to all or part of the available Excess Proceeds (the “Advance Portion”). If any Excess Proceeds remain unapplied after the consummation of an Asset Sale Offer, the Issuer and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of $1,000, or in integral multiples of $1,000 in excess thereof, shall be purchased. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero (regardless of whether there are any remaining Excess Proceeds upon such completion), and in the case of an Advance Offer, the Advance Portion shall be excluded in subsequent calculations of Excess Proceeds.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries, taken as a whole, will be governed by Section 6.14 and/or Section 10.1, and not by the provisions of this Section 6.15.
(f) If the Asset Sale Offer purchase date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the right Person in whose name a Note is registered at the close of business on such Record Date, and no other interest will be payable to Holders of record of who tender Notes pursuant to the Securities on Asset Sale Offer.
(g) Within five Business Days after the relevant record date Issuer is obligated to receive interest due on make an Asset Sale Offer as described in the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event)preceding paragraphs, the Company shall send Issuer will deliver a written notice of such Change of Control Offer by first-class mail, with a copy to the TrusteeHolders, accompanied by such information regarding the Paying Agent Issuer and its Affiliates as the Registrar, Issuer in good faith believes will enable such Holders to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance make an informed decision with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant respect to such Change of Control Offer Asset Sale Offer. Such notice shall be accepted for payment by the Company;
(2) state, among other things, the purchase price and the purchase date, which shall be a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);delivered.
(3h) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless Without limiting the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by lawforegoing:
(1i) accept for payment all Securities or portions thereof properly tendered any Holder may decline any offer of prepayment pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tenderedthis Section 6.15; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenture.
Appears in 2 contracts
Samples: Trust Indenture, Trust Indenture
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuer shall offer to purchase on the Change of Control Purchase Date all or any part (equal to £59,000 or an integral multiple of £1 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date), provided, that the Issuer shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A Section 6.01, “Optional Redemption,” or Section 7.01, “Redemption Upon Changes in Withholding Taxes,” of this Note. The Issuer shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds £25 million, the Issuer shall, within 20 Business Days thereafter, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt (which, in the case of Excess Proceeds which constitute proceeds from the sale or other disposition of Collateral, were secured by a pari passu Lien on such Collateral), to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as a multiple of £1) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Issuer may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of Notes and the then Outstanding Securities under principal amount or accreted value of such Pari Passu Debt tendered by each holder or by such other method as is customary with the Indentureprocedures of Euroclear or Clearstream, including the application of a “pool factor” to the nominal amount of each Note). Upon completion of each such Excess Proceeds Offer, the amount of Excess Proceeds will be reset to zero.
Appears in 2 contracts
Samples: Indenture (T F Bell Holdings LTD), Indenture (Portishead Insurance Management LTD)
Repurchase at the Option of Holders. If (a) In the event that, pursuant to Section 4.10 or Section 4.13, the Company shall be required to commence an offer to all Holders to purchase Notes and, at the Company’s option, holders of other Pari Passu Indebtedness (each, an “Offer to Purchase”), it shall follow the procedures specified below.
(b) Within 25 days following a Net Proceeds Offer Trigger Date and within 30 days following a Change of Control, the Company shall mail a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that triggered the Offer to Purchase and offering to purchase Notes on the date (the “Purchase Date”) specified in such notice. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Offer to Purchase. The Offer to Purchase shall be made to all Holders. The notice, which shall govern the terms of the Offer to Purchase, shall state:
(1) that the Offer to Purchase is being made pursuant to this Section 3.09 and Section 4.10 or 4.13, as the case may be, and the length of time the Offer to Purchase shall remain open;
(2) that either (a) in the case of a Change of Control Event occursOffer, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make an offer to purchase all of the Securities pursuant to the offer described below (the “Change of Control Offer”) has occurred and that such Holder has the right to require the Company to purchase such holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount thereof or (b) in the case of a Net Proceeds Offer, there are Net Proceeds in an amount such that such Holder has the right to require the Company to purchase such Holder’s Notes at 100% of the Securitiesprincipal amount thereof, together with in each case, plus accrued and unpaid interest, if any, to the date of purchase, Purchase Date (subject to the right of Holders of record of the Securities on the relevant record date Regular Record Date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy an Interest Payment Date that is on or prior to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted date fixed for payment by the Companypurchase);
(23) the purchase price and the purchase date, Purchase Date (which shall be a Business Day no earlier than 30 days nor later than 60 days from following the applicable Net Proceeds Offer Trigger Date, in the case of a Net Proceeds Offer, or the date such notice is mailed (mailed, in the “case of a Change of Control Payment Date”Offer);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults aggregate principal amount of Notes (and in the payment case of a Net Proceeds Offer, Pari Passu Indebtedness) being offered to be purchased (the “Offer Amount”), which shall be equal to the Net Proceeds Offer Amount in the case of a Net Proceeds Offer and the principal amount of all Notes outstanding in the case of a Change of Control Payment, all Securities accepted for payment pursuant Offer; information as to any other Pari Passu Indebtedness included in the Change Offer to Purchase (in the case of Control Offer shall cease to accrue interest on a Net Proceeds Offer); and the Change of Control Payment purchase price and the Purchase Date;
(5) that Holders shall be entitled to withdraw their any Note not tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept accepted for payment all Securities shall continue to accrete or portions thereof properly tendered pursuant to the Change of Control Offeraccrue interest;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenture.
Appears in 2 contracts
Samples: Indenture Agreement (Scotts Miracle-Gro Co), Indenture Agreement (Scotts Miracle-Gro Co)
Repurchase at the Option of Holders. If Upon the occurrence of a Change of Control Event occursControl, unless each Holder of Notes will have the Company shall have previously right to require the Issuers to repurchase all or concurrently mailed a redemption notice with respect any part (equal to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make $1,000 or an offer to purchase all integral multiple thereof) of the Securities such Holder's Notes pursuant to the offer described below (the “"Change of Control Offer”") at a an offer price in cash (the “"Change of Control Payment”") equal to 101.0101% of the aggregate principal amount of the Securities, together with thereof plus accrued and unpaid interestinterest and Liquidated Damages thereon, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 Within ten days following any Change of Control Event)Control, the Company shall send Issuers will mail a notice of such to each Holder describing the transaction or transactions that constitute the Change of Control Offer by first-class mail, with a copy and offering to repurchase Notes on the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of date specified in such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase datenotice, which date shall be no earlier than 30 days nor and no later than 60 days from the date such notice is mailed (the “"Change of Control Payment Date”");
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities procedures required by this Indenture and their election to require the Company to purchase described in such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securitiesnotice. The Company shall Issuers will comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or and regulations are applicable in connection with the repurchase of Securities pursuant to the Notes as a result of a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereofControl. On the Change of Control Payment Date, the Company Issuers shall, to the extent permitted by law:
lawful, (1) accept for payment all Securities Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
, (2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities Notes or portions thereof so tendered; and
tendered and (3) deliver, deliver or cause to be delivered, delivered to the Trustee for cancellation the Securities Notes so accepted together with an Officer’s Officers' Certificate to stating the Trustee stating that such Securities aggregate principal amount of Notes or portions thereof have been tendered to and being purchased by the CompanyIssuers. The Company Paying Agent shall promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof. The Issuers shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The Change of Control provisions described above will be applicable whether or not any other provisions of this Indenture are applicable. Except as described above with respect to a Change of Control, this Indenture does not contain provisions that permit the Holders of the Notes to require that the Issuers repurchase or redeem the Notes in the event of a takeover, recapitalization or similar transaction. The Issuers shall not be required to make a Change of Control Offer following upon a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the this Indenture and the Securities applicable to a Change of Control Offer made by the Company Issuers and purchases all Securities Notes validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenture.
Appears in 2 contracts
Samples: Indenture (Anthony Crane Sales & Leasing Lp), Indenture (Anthony Crane Holdings Capital Corp)
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuers or the Parent Guarantor shall offer to purchase on the Change of Control Purchase Date all or any part (equal to €100,000 or an integral multiple of €1,000 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date); provided that the Issuers and the Parent Guarantor shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A Section 6, “Optional Redemption,” or Section 7, “Redemption upon Changes in Withholding Taxes,” of this Note. The Issuers shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders of the Notes must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds (i) for so long as any of the January 2010 Senior Notes remain outstanding, €25,000,000 and (ii) thereafter, €30,000,000, the Parent Guarantor or the Issuers shall, within 20 Business Days, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as a multiple of €1,000) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Parent Guarantor may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of Notes and the then Outstanding Securities under principal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the Indentureamount of Excess Proceeds will be reset to zero.
Appears in 2 contracts
Samples: Secured Indenture (Ardagh Finance Holdings S.A.), Senior Indenture (Ardagh Finance Holdings S.A.)
Repurchase at the Option of Holders. If Upon the occurrence of a Change of Control Event occursControl, unless each Holder of Debentures will have the Company shall have previously right to require the Issuers to repurchase all or concurrently mailed a redemption notice with respect any part (equal to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make $1,000 or an offer to purchase all integral multiple thereof) of the Securities such Holder's Debentures pursuant to the offer described below (the “"Change of Control Offer”") at a an offer price in cash (the “"Change of Control Payment”") equal to 101.0101% of the Accreted Value thereof on the date of repurchase (if such date of repurchase is prior to August 1, 2003) or 101% of the aggregate principal amount thereof (if such date of the Securitiesrepurchase is on or after August 1, together with 2003) plus, in each case, accrued and unpaid interestinterest and Liquidated Damages thereon, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 Within ten days following any Change of Control Event)Control, the Company shall send Issuers will mail a notice of such to each Holder describing the transaction or transactions that constitute the Change of Control Offer by first-class mail, with a copy and offering to repurchase Debentures on the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of date specified in such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase datenotice, which date shall be no earlier than 30 days nor and no later than 60 days from the date such notice is mailed (the “"Change of Control Payment Date”");
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities procedures required by this Indenture and their election to require the Company to purchase described in such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securitiesnotice. The Company shall Issuers will comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or and regulations are applicable in connection with the repurchase of Securities pursuant to the Debentures as a result of a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereofControl. On the Change of Control Payment Date, the Company shallIssuers will, to the extent permitted by law:
lawful, (1) accept for payment all Securities Debentures or portions thereof properly tendered pursuant to the Change of Control Offer;
, (2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities Debentures or portions thereof so tendered; and
tendered and (3) deliver, deliver or cause to be delivered, delivered to the Trustee for cancellation the Securities Debentures so accepted together with an Officer’s Officers' Certificate to stating the Trustee stating that such Securities aggregate principal amount at maturity of Debentures or portions thereof have been tendered to and being purchased by the CompanyIssuers. The Company Paying Agent will promptly mail to each Holder of Debentures so tendered the Change of Control Payment for such Debentures, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Debenture equal in principal amount at maturity to any unpurchased portion of the Debentures surrendered, if any; provided that each such new Debenture will be in a principal amount of $1,000 or an integral multiple thereof. The Issuers will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The Change of Control provisions described above will be applicable whether or not any other provisions of this Indenture are applicable. Except as described above with respect to a Change of Control, this Indenture does not contain provisions that permit the Holders of the Debentures to require that the Issuers repurchase or redeem the Debentures in the event of a takeover, recapitalization or similar transaction. The Issuers shall not be required to make a Change of Control Offer following upon a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the this Indenture and the Securities applicable to a Change of Control Offer made by the Company Issuers and purchases all Securities Debentures validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenture.
Appears in 2 contracts
Samples: Indenture (Anthony Crane Holdings Capital Corp), Indenture (Anthony Crane Sales & Leasing Lp)
Repurchase at the Option of Holders. If (a) In the event that, pursuant to Section 4.10 or Section 4.13, the Company shall be required to commence an offer to all Holders to purchase Notes and, at the Company’s option, holders of other Pari Passu Indebtedness (each, an “Offer to Purchase”), it shall follow the procedures specified below.
(b) Within 25 days following a Net Proceeds Offer Trigger Date and within 30 days following a Change of Control, the Company shall mail or electronically deliver if held by DTC a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that triggered the Offer to Purchase and offering to purchase Notes on the date (the “Purchase Date”) specified in such notice. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Offer to Purchase. The Offer to Purchase shall be made to all Holders. The notice, which shall govern the terms of the Offer to Purchase, shall state:
(1) that the Offer to Purchase is being made pursuant to this Section 3.09 and Section 4.10 or 4.13, as the case may be, and the length of time the Offer to Purchase shall remain open;
(2) that either (a) in the case of a Change of Control Event occursOffer, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make an offer to purchase all of the Securities pursuant to the offer described below (the “Change of Control Offer”) has occurred and that such Holder has the right to require the Company to purchase such holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount thereof or (b) in the case of a Net Proceeds Offer, there are Net Proceeds in an amount such that such Holder has the right to require the Company to purchase such Holder’s Notes at 100% of the Securitiesprincipal amount thereof, together with in each case, plus accrued and unpaid interest, if any, to the date of purchase, Purchase Date (subject to the right of Holders of record of the Securities on the relevant record date Regular Record Date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy an Interest Payment Date that is on or prior to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted date fixed for payment by the Companypurchase);
(23) the purchase price and the purchase date, Purchase Date (which shall be a Business Day no earlier than 30 days nor later than 60 days from following the applicable Net Proceeds Offer Trigger Date, in the case of a Net Proceeds Offer, or the date such notice is mailed (mailed, in the “case of a Change of Control Payment Date”Offer);
(34) the aggregate principal amount of Notes (and in the case of a Net Proceeds Offer, Pari Passu Indebtedness) being offered to be purchased (the “Offer Amount”), which shall be equal to the Net Proceeds Offer Amount in the case of a Net Proceeds Offer and the principal amount of all Notes outstanding in the case of a Change of Control Offer; information as to any other Pari Passu Indebtedness included in the Offer to Purchase (in the case of a Net Proceeds Offer); and the purchase price and the Purchase Date;
(5) that any Securities Note not properly tendered or accepted for payment shall remain Outstanding and continue to accrete or accrue interest;
(46) that that, unless the Company defaults in the payment of the Change of Control Paymentmaking such payment, all Securities any Note accepted for payment pursuant to the Change of Control Offer to Purchase shall cease to accrue interest on after the Change of Control Payment Purchase Date;
(57) that Holders electing to have a Note purchased pursuant to any Offer to Purchase shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(8) that Holders shall be entitled to withdraw their tendered Securities and their election to require if the Company to purchase such SecuritiesCompany, provided, however, that the Depositary or the Paying Agent Agent, as the case may be, receives, not later than the close of business on the fifth second Business Day preceding prior to the Change of Control Payment Date Purchase Date, a telegram, telex, facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the SecuritiesHolder, the principal amount of such Securities tendered the Note the Holder delivered for purchase, purchase and a statement that such Holder is withdrawing its tendered Securities and its his election to have such Securities Note purchased;
(69) that, in the case of a Net Proceeds Offer, if the aggregate principal amount of Notes tendered by Holders into an Offer to Purchase exceeds the Offer Amount, the Trustee shall select the Notes to be purchased (i) if the Notes are listed, in compliance with the requirements of the principal national securities exchange on which the Notes are then listed or (ii) if the Notes are not so listed, on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000, shall be purchased);
(10) that the Holders whose Securities are being repurchased Notes were purchased only in part shall be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;Notes surrendered (or transferred by book-entry transfer); and
(711) if such notice is mailed prior to in the occurrence case of a Change of Control EventOffer, stating that the Change of Control Offer is conditional on the occurrence of circumstances and relevant facts regarding such Change of Control Event; andControl.
(8) other instructionsc) If the Purchase Date is on or after a Regular Record Date and on or before the related Interest Payment Date, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company any accrued and unpaid interest shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder be paid to the extent Person in whose name a Note is registered at the close of business on such laws or regulations are applicable in connection with the repurchase of Securities Regular Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to a Change of Control Offer. To the extent that Offer to Purchase
(d) On or before the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Purchase Date, the Company shall, to the extent permitted by law:
(1) lawful, accept for payment all Securities payment, in accordance with Section 3.09(b)(9), the Offer Amount of Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) Offer to Purchase, or if less than the Offer Amount has been tendered, all Notes tendered, shall deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of purchase price for all Securities Notes so accepted for purchase and shall deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof so tendered; and
(3) deliverwere accepted for payment by the Company in accordance with the terms of this Section 3.09. The Company, the Depositary or cause the Paying Agent, as the case may be, shall promptly mail or electronically deliver if held by DTC to be delivered, each tendering Holder an amount equal to the Trustee purchase price of the Notes tendered by such Holder and accepted by the Company for cancellation purchase, and the Securities Company shall promptly issue a new Note, and the Trustee, upon written request from the Company shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted together with an Officer’s Certificate shall be promptly mailed or delivered by the Company to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the CompanyHolder thereof. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes publicly announce the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making results of the Change of Control Offer (i) a definitive agreement is in place for to Purchase on or as soon as practicable after the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the IndenturePurchase Date.
Appears in 2 contracts
Samples: Indenture Agreement (Scotts Miracle-Gro Co), Indenture Agreement (Scotts Miracle-Gro Co)
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuers or the Parent Guarantor shall offer to purchase on the Change of Control Purchase Date all or any part (equal to €100,000 or an integral multiple of €1,000 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date); provided that the Issuers and the Parent Guarantor shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A Section 6, “Optional Redemption,” or Section 7, “Redemption Upon Changes in Withholding Taxes,” of this Note. The Issuers shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders of the Notes must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds €50,000,000, the Parent Guarantor or the Issuers shall, within 20 Business Days, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as a multiple of €1,000) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Parent Guarantor may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of Notes and the then Outstanding Securities under principal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the Indentureamount of Excess Proceeds will be reset to zero.
Appears in 2 contracts
Samples: Secured Indenture (Ardagh Finance Holdings S.A.), Senior Indenture (Ardagh Finance Holdings S.A.)
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuers or the Parent Guarantor shall offer to purchase on the Change of Control Purchase Date all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date); provided that the Issuers and the Parent Guarantor shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A Section 6, “Optional Redemption,” or Section 7, “Redemption Upon Changes in Withholding Taxes,” of this Note. The Issuers shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders of the Notes must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds €50,000,000, the Parent Guarantor or the Issuers shall, within 20 Business Days, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as a multiple of $1,000) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Parent Guarantor may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of Notes and the then Outstanding Securities under principal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the Indentureamount of Excess Proceeds will be reset to zero.
Appears in 2 contracts
Samples: Senior Indenture (Ardagh Finance Holdings S.A.), Secured Indenture (Ardagh Finance Holdings S.A.)
Repurchase at the Option of Holders. If Asset Sales
(a) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(i) the Issuer (or the Restricted Subsidiary, as the case may be) receives consideration in respect of such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(ii) at least 50% of the consideration therefor received by the Issuer or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Issuer’s or such Restricted Subsidiary’s most recently available annual or quarterly balance sheet, of the Issuer or any of its Restricted Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by the transferee of any such assets pursuant to a Change customary novation agreement or similar agreement that releases the Issuer or such Restricted Subsidiary from further liability;
(B) any notes or other obligations received by the Issuer or any such Restricted Subsidiary in such Asset Sale that are converted within 365 days by the Issuer or such Restricted Subsidiary into cash, to the extent of Control Event occursthe cash received in that conversion.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, unless the Company shall have previously Issuer or concurrently mailed its Restricted Subsidiaries may apply an amount equal to such Net Proceeds to, at its option, any combination of the following purposes:
(i) to permanently repay, prepay, redeem, purchase or repurchase Indebtedness of the Issuer or any of its Restricted Subsidiaries secured by a redemption notice Lien and, if the Indebtedness so repaid is revolving credit Indebtedness, to correspondingly permanently reduce commitments with respect thereto; or
(ii) to all reinvest in new assets and make any capital expenditure in or that is used or useful in a Permitted Business or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets), provided that (A) such capital expenditure or purchase is consummated within the then Outstanding Securities pursuant later of (x) 365 days after the receipt of the Net Proceeds from the related Asset Sale and (y) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A) of this Section 6.14(b)(ii) the amount not so applied will be deemed to Clause A and Clause B abovebe Excess Proceeds (as defined below).
(c) Pending the final application of any such Net Proceeds, the Company shall Issuer may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraphs will constitute “Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $5.0 million, then within ten Business Days after such date, the Issuer will make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Asset Sale Offer”) at a price in cash (to all Holders of Notes to purchase the “Change of Control Payment”) equal to 101.0% of the aggregate maximum principal amount of Notes that may be purchased out of the Securities, together with Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, interest to the date of purchase, subject and will be payable in cash. The Issuer may satisfy the foregoing obligation with respect to such Excess Proceeds from an Asset Sale by making an Asset Sale Offer in advance of being required to do so by this Indenture (an “Advance Offer”) with respect to all or part of the available Excess Proceeds (the “Advance Portion”). If any Excess Proceeds remain unapplied after the consummation of an Asset Sale Offer, the Issuer and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of $1,000, or in integral multiples of $1,000 in excess thereof, shall be purchased. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero (regardless of whether there are any remaining Excess Proceeds upon such completion), and in the case of an Advance Offer, the Advance Portion shall be excluded in subsequent calculations of Excess Proceeds.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries, taken as a whole, will be governed by Section 6.13 and/or Section 10.1, and not by the provisions of this Section 6.14.
(f) If the Asset Sale Offer purchase date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the right Person in whose name a Note is registered at the close of business on such Record Date, and no other interest will be payable to Holders of record of who tender Notes pursuant to the Securities on Asset Sale Offer.
(g) Within five Business Days after the relevant record date Issuer is obligated to receive interest due on make an Asset Sale Offer as described in the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event)preceding paragraphs, the Company shall send Issuer will deliver a written notice of such Change of Control Offer by first-class mail, with a copy to the TrusteeHolders, accompanied by such information regarding the Paying Agent Issuer and its Affiliates as the Registrar, Issuer in good faith believes will enable such Holders to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance make an informed decision with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant respect to such Change of Control Offer Asset Sale Offer. Such notice shall be accepted for payment by the Company;
(2) state, among other things, the purchase price and the purchase date, which shall be a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);delivered.
(3h) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;Without limiting the foregoing:
(4i) that unless the Company defaults in the payment any Holder may decline any offer of the Change of Control Payment, all Securities accepted for payment prepayment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Eventthis Section 6.14; and
(8) other instructions, as determined ii) the failure of any such Holder to accept or decline any such offer of prepayment shall be deemed to be an election by the Company, consistent with the covenant described hereunder, that a such Holder must follow to tender its Securities. decline such prepayment.
(i) The Company shall Issuer will comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder Applicable Securities Legislation to the extent such laws or regulations requirements are applicable in connection with the each repurchase of Securities Notes pursuant to a Change of Control an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations Applicable Securities Legislation conflict with the Asset Sale provisions of this Indenture, or compliance with the Asset Sale provisions of this Indenture or the Securitieswould constitute a violation of Applicable Securities Legislation, the Company shall Issuer will comply with the applicable securities laws Applicable Securities Legislation and regulations and shall will not be deemed to have breached its obligations under the Company’s obligations described in the Asset Sale provisions of this Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:such compliance.
(1j) accept for payment all Securities Notwithstanding anything contained herein, Restricted Subsidiaries cannot sell, assign, transfer, convey or portions thereof properly tendered pursuant to the Change otherwise dispose of Control Offer;
(2) deposit any Material Permits except with the Paying Agent an amount equal to the aggregate Change consent of Control Payment in respect Holders of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making least 51% of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indentureoutstanding Notes.
Appears in 2 contracts
Samples: Trust Indenture, Trust Indenture
Repurchase at the Option of Holders. Subject to the additional terms and conditions set forth in the Supplemental Indenture:
(a) If a Change of Control Event occurs, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall Issuers will make an offer to purchase all of the Securities pursuant to the offer described below (the a “Change of Control Offer”) to each Holder of Notes to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securities, together with Notes repurchased plus accrued and unpaid interest, if anyinterest on the Notes repurchased, to the date of purchase, subject to the right rights of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Interest Payment Date (the “Change of Control Event (but not later than Payment”). Within 30 days following any Change of Control Event)Control, the Company shall send Issuers will mail a notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of describing the Securities to the address of such Holder appearing in the security register, transaction or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) transactions that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of constitute the Change of Control Payment, all Securities accepted for payment pursuant to and setting forth the procedures governing the Change of Control Offer shall cease as required by the Supplemental Indenture. The Holder of this Note may elect to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission have this Note or a letter setting forth portion thereof in an authorized denomination purchased by completing the name form entitled “Option of the Holder of the Securities, the principal amount of such Securities tendered for purchase, to Elect Purchase” attached hereto and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered tendering this Note pursuant to the Change of Control Offer;.
(2b) deposit If Suburban Propane or any of its Restricted Subsidiaries consummates any Asset Sale, in certain circumstances specified in Section 10.11 of the Supplemental Indenture, the Issuers will commence an offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Paying Agent an amount equal Notes containing provisions similar to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements those set forth in the Supplemental Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (an “Asset Sale Offer”) pursuant to Section 11.10 of the Supplemental Indenture to purchase the maximum principal amount of Notes and other pari passu Indebtedness that may be purchased out of the Securities applicable Excess Proceeds. The offer price in any Asset Sale Offer will be equal to a Change 100% of Control Offer made by the Company principal amount thereof plus accrued and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything unpaid interest, to the contrary hereindate of purchase, a Change of Control Offer may and will be made payable in advance of a Change of Control Event, conditional upon cash in accordance with the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as procedures set forth in Clause K belowthe Supplemental Indenture. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the provisions in Issuers may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture Supplemental Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the Securities relative amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Holders of Notes that are the Company’s obligation to make subject of an offer to repurchase purchase will receive an Asset Sale Offer from the Securities as a result Issuers prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the IndentureHolder to Elect Purchase” attached hereto.
Appears in 2 contracts
Samples: First Supplemental Indenture (Suburban Propane Partners Lp), First Supplemental Indenture (Suburban Propane Partners Lp)
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuers or the Parent Guarantor shall offer to purchase on the Change of Control Purchase Date all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date); provided that the Issuers and the Parent Guarantor shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A Section 6, “Optional Redemption,” or Section 7, “Redemption upon Changes in Withholding Taxes,” of this Note. The Issuers shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders of the Notes must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds (i) for so long as any of the January 2010 Senior Notes remain outstanding, €25,000,000 and (ii) thereafter, €30,000,000, the Parent Guarantor or the Issuers shall, within 20 Business Days, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as a multiple of $1,000) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Parent Guarantor may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of Notes and the then Outstanding Securities under principal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the Indentureamount of Excess Proceeds will be reset to zero.
Appears in 2 contracts
Samples: Senior Indenture (Ardagh Finance Holdings S.A.), Secured Indenture (Ardagh Finance Holdings S.A.)
Repurchase at the Option of Holders. If Upon a Change of Control Event occurs---------------------------------------------------- Control.
(a) Upon the occurrence of a Change of Control, unless each Holder of -------- Securities shall have the right to require the Company shall have previously to repurchase all or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make an offer to purchase all any part of the such Holder's Securities pursuant to the offer described below (the “"Change of Control Offer”") at a purchase price in cash (the “"Change of Control Payment”Purchase Price") equal to 101.0101% of the aggregate principal amount of the Securitiesthereof, together with plus accrued and unpaid interestinterest thereon, if any, to the purchase date of purchase, (subject to the right of Holders holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event ).
(but not later than b) Within 30 days following any Change of Control Event)Control, the Company shall send (a) cause a notice of such the Change of Control Offer to be sent at least once to the Dow Xxxxx News Service or similar business news service in the United States and (b) send, by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the Securities, at such Holder's address of such Holder appearing in the security registerSecurity Register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
a notice stating: (1i) that a Change of Control has occurred and a Change of Control Offer is being made pursuant to this Clause D Section and that all Securities properly timely tendered pursuant to such will be accepted for payment; (ii) the Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price Purchase Price and the purchase date, which shall be be, subject to any contrary requirements of applicable law, a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “"Change of Control Payment Date”");
; (3iii) that any Securities not properly tendered shall remain Outstanding the circumstances and continue to accrue interest;
(4) that unless the Company defaults in the payment of relevant facts regarding the Change of Control Payment(including information with respect to pro forma historical income, all Securities cash flow and capitalization after giving effect to the Change of Control); (iv) that any Security (or portion thereof) accepted for payment (and duly paid on the Change of Control Payment Date) pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;; (v) that any Securities (or portions thereof) not properly tendered shall continue to accrue interest; (vi) the procedures that Holders of Securities must follow in order to tender their Securities (or portions thereof) for payment and the procedures that Holders of Securities must follow in order to withdraw an election to tender Securities (or portions thereof) for payment; and (vii) all other instructions and materials necessary to enable Holders to tender Securities pursuant to the Change of Control Offer.
(5c) that Holders electing to have a Security purchased shall be required to surrender the Security, with an appro priate form duly completed, to the Company or its agent at the address specified in the notice at least three Business Days prior to the Change of Control Payment Date. Holders shall be entitled to withdraw their tendered Securities and their election to require if the Trustee or the Company to purchase such Securities, provided, however, that the Paying Agent receives, receives not later than the close of business on the fifth one Business Day preceding prior to the Change of Control Payment Date Date, a telegram, telex, facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the SecuritiesHolder, the principal amount of such Securities tendered the Security which was delivered for purchase, purchase by the Holder and a statement that such Holder is withdrawing its tendered Securities and its his election to have such Securities Security purchased;
(6) that the . Holders whose Securities are being repurchased purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;.
(7d) if such notice is mailed On or prior to 11:00 a.m., New York City time, on the occurrence of a Change of Control EventPayment Date, the Company shall irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company or any of its Wholly Owned Subsidiaries is acting as the Paying Agent, segregate and hold in trust) in cash an amount equal to the Change of Control Purchase Price payable to the Holders entitled thereto, to be held for payment in accordance with the provisions of this Section.
(e) On the Change of Control Payment Date, the Company shall deliver to the Trustee the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company for payment. The Trustee or the Paying Agent shall, on the Change of Control Payment Date, mail or deliver payment to each tendering Holder of the Change of Control Payment. In the event that the aggregate Change of Control Purchase Price is less than the amount delivered by the Company to the Trustee or the Paying Agent, the Trustee or the Paying Agent, as the case may be, shall deliver the excess to the Company immediately after the Change of Control Payment Date.
(f) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holder. Unless the Company defaults in the payment of the Change of Control Purchase Price, each Security accepted for payment pursuant to the Change of Control Offer is conditional shall cease to accrue interest on and after the occurrence of such Change of Control Event; andPayment Date.
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. g) The Company shall comply comply, to the extent applicable, with the requirements of Section Rule 14(e) of under the Exchange Act and any other securities laws and or regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase purchase of Securities pursuant to a Change of Control Offerthis Section. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securitiesthis Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s its obligations described in the Indenture and the Securities under this Sec tion by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenture.
Appears in 1 contract
Samples: Exchange Indenture (Century Maintenance Supply Inc)
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuers or the Parent Guarantor shall offer to purchase on the Change of Control Purchase Date all or any part (equal to €100,000 or an integral multiple of €1,000 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date); provided that the Issuers and the Parent Guarantor shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A paragraph 6 or paragraph 7 of this Note. The Issuers shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders of the Notes must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds €50,000,000, the Parent Guarantor or the Issuers shall, within 20 Business Days, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as an integral multiple of €1,000) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Parent Guarantor may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of Notes and the then Outstanding Securities under principal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the Indentureamount of Excess Proceeds will be reset to zero.
Appears in 1 contract
Samples: Indenture (Ardagh Group S.A.)
Repurchase at the Option of Holders. Subject to the additional terms and conditions set forth in the Indenture:
(a) If a Change of Control Event occurs, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall Issuers will make an offer to purchase all of the Securities pursuant to the offer described below (the a “Change of Control Offer”) to each Holder of 2018 Notes to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s 2018 Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securities, together with 2018 Notes repurchased plus accrued and unpaid interest, if anyinterest on the 2018 Notes repurchased, to the date of purchase, subject to the right rights of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Interest Payment Date (the “Change of Control Event (but not later than Payment”). Within 30 days following any Change of Control Event)Control, the Company shall send Issuers will mail a notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of describing the Securities to the address of such Holder appearing in the security register, transaction or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) transactions that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of constitute the Change of Control Payment, all Securities accepted for payment pursuant to and setting forth the procedures governing the Change of Control Offer shall cease as required by the Indenture. The Holder of this 2018 Note may elect to accrue interest on have this 2018 Note or a portion thereof in an authorized denomination purchased by completing the Change form entitled “Option of Control Payment Date;
(5) that Holders shall be entitled Holder to withdraw their tendered Securities and their election Elect Purchase” attached hereto, or transfer by book-entry transfer, to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than at the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described address specified in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept notice for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;.
(2b) deposit If Suburban Propane or any of its Restricted Subsidiaries consummates any Asset Sale, in certain circumstances specified in Section 9.11 of the Indenture, the Issuers will commence an offer to all Holders of 2018 Notes and all holders of other Indebtedness that is pari passu with the Paying Agent an amount equal 2018 Notes containing provisions similar to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (an “Asset Sale Offer”) pursuant to Section 10.11 of the Indenture to purchase the maximum principal amount of 2018 Notes and other pari passu Indebtedness that may be purchased out of the Securities applicable Excess Proceeds. The offer price in any Asset Sale Offer will be equal to a Change 100% of Control Offer made by the Company principal amount thereof plus accrued and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything unpaid interest, to the contrary hereindate of purchase, a Change of Control Offer may and will be made payable in advance of a Change of Control Event, conditional upon cash in accordance with the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as procedures set forth in Clause K belowthe Indenture. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the provisions in Issuers may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture Indenture. If the aggregate principal amount of 2018 Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the 2018 Notes and the Securities relative Issuers shall select such other pari passu Indebtedness to be purchased on a pro rata basis. Holders of 2018 Notes that are the Company’s obligation to make subject of an offer to repurchase purchase will receive an Asset Sale Offer from the Securities as a result Issuers prior to any related purchase date and may elect to have such 2018 Notes purchased by completing the form entitled “Option of a Change of Control Event may be waived Holder to Elect Purchase” attached hereto, or modified transfer by book-entry transfer, to the Paying Agent at any time with the written consent of address specified in the Holders of a majority in principal amount of notice for the then Outstanding Securities under the IndentureAsset Sale Offer.
Appears in 1 contract
Repurchase at the Option of Holders. If (a) Upon the occurrence of a Change of Control, each Holder of Senior Discount Notes will have the right to require the Issuers to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of such Holder's Senior Discount Notes pursuant to a Change of Control Event occurs, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make Offer (as defined below) at an offer to purchase all of the Securities pursuant to the offer described below (the “Change of Control Offer”) at a price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securities, together with at maturity thereof plus accrued and unpaid interestinterest and Liquidated Damages thereon, if any, to the date of purchasepurchase (or, subject in the case of repurchases of Senior Discount Notes prior to the right of Holders of record Full Accretion Date, at a purchase price equal to 101% of the Securities on Accreted Value thereof as of the relevant record date to receive interest due on of purchase) (collectively, the relevant interest payment date. In connection with any "Change of Control Event (but not later than 30 Payment"). Within 20 days following any Change of Control Event)Control, the Company shall send Issuers will mail a notice of such to each Holder describing the transaction or transactions that constitute the Change of Control Offer by first-class mail, with and offer (a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a "Change of Control Offer is being made pursuant Offer") to this Clause D and that all Securities properly tendered pursuant to repurchase Senior Discount Notes on the date specified in such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase datenotice, which date shall be no earlier than 30 days nor and no later than 60 days from the date such notice is mailed (the “"Change of Control Payment Date”");
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities procedures required by this Indenture and their election to require the Company to purchase described in such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securitiesnotice. The Company shall Issuers will comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or and regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities Senior Discount Notes as a result of a Change of Control Event may be waived Control.
(b) When the aggregate amount of Excess Proceeds from Asset Sales by the Issuers and their Restricted Subsidiaries exceeds $10.0 million, to the extent permitted by the Senior Subordinated Note Indenture, the Issuers shall commence an offer to all Holders of Senior Discount Notes and all holders of other pari passu Indebtedness of the Issuers containing provisions similar to those set forth in the Indenture with respect to offers to purchase or modified at any time redeem with the written consent proceeds of sales of assets (an "Asset Sale Offer") pursuant to Section 3.9 of the Holders of a majority in Indenture to purchase the maximum principal amount of Senior Discount Notes and such other pari passu Indebtedness of the then Outstanding Securities under Issuers that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase (or, in the case of repurchases of Senior Discount Notes prior to the Full Accretion Date, at a purchase price equal to 100% of the Accreted Value thereof as of the date of purchase), in accordance with the procedures set forth in the Indenture and such other Indebtedness. To the extent that any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuers may use such Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount at maturity or Accreted Value (as applicable) of Senior Discount Notes tendered into such Asset Sale surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Senior Discount Notes to be purchased on a pro rata basis, by lot or other customary method; provided that no Senior Discount Notes of $1,000 or less shall be redeemed in part. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
(c) Holders of Senior Discount Notes that are the subject of a Change of Control Offer or an Asset Sale Offer, as the case may be, may elect to have such Senior Discount Notes purchased by completing the form entitled "Option of Holder to Elect Purchase" on the reverse of the Senior Discount Notes.
Appears in 1 contract
Repurchase at the Option of Holders. If a Change of Control Triggering Event occurs, unless the Company shall has exercised its right to redeem the Senior Notes, Holders of Senior Notes will have previously or concurrently mailed a redemption notice with respect the right to all the then Outstanding Securities pursuant to Clause A and Clause B above, require the Company shall make to repurchase all or any part (equal to $2,000 or an offer to purchase all integral multiple of the Securities $1,000 in excess thereof) of their Senior Notes pursuant to the offer described below (the “"Change of Control Offer”) at a price in cash ("). In the “Change of Control Payment”) Offer, the Company shall offer payment in cash equal to 101.0101% of the aggregate principal amount of the Securities, together with Senior Notes repurchased plus accrued and unpaid interest, if any, on the Senior Notes repurchased, to the date of purchase, subject to purchase (the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any "Change of Control Event (but not later than Payment"). Within 30 days following any Change of Control Event)Triggering Event or, at the option of the Company, prior to any Change of Control, but after public announcement of the transaction or transactions that constitute or may constitute the Change of Control, the Company shall send mail a notice to Holders of such Senior Notes describing the transaction or transactions that constitute or may constitute the Change of Control Offer by first-class mail, with a copy Triggering Event and offering to repurchase the Trustee, Senior Notes on the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing date specified in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase datenotice, which shall date will be no earlier than 30 days nor and no later than 60 days from the date such notice is mailed (the “"Change of Control Payment Date”"), pursuant to the procedures required by the Indenture and described in such notice, which offer will constitute the Change of Control Offer. The notice will, if mailed prior to the date on which the Change of Control occurs, state that the Change of Control Offer is conditioned on the Change of Control Triggering Event occurring on or prior to the applicable Change of Control Payment Date. On the Change of Control Payment Date, the Company shall be required, to the extent lawful, to:
(a) accept for payment all Senior Notes or portions of Senior Notes properly tendered pursuant to the Change of Control Offer;
(3b) that any Securities deposit with the paying agent an amount equal to the Change of Control Payment in respect of all Senior Notes or portions of Senior Notes properly tendered; and
(c) deliver or cause to be delivered to the Trustee the Senior Notes properly accepted together with an Officers' Certificate stating the aggregate principal amount of Senior Notes or portions of Senior Notes being purchased. The Company shall not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and the third party repurchases all Senior Notes properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless not withdrawn under its offer. In addition, the Company defaults shall not be required to repurchase any Senior Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture, other than a default in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of upon a Change of Control Triggering Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws or and regulations are applicable in connection with the repurchase of Securities pursuant to the Senior Notes as a result of a Change of Control OfferTriggering Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of the Indenture or the SecuritiesIndenture, the Company shall be required to comply with the applicable securities laws and regulations and shall will not be deemed to have breached the Company’s its obligations described in the Indenture and the Securities under this Article VII by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenturecompliance.
Appears in 1 contract
Repurchase at the Option of Holders. If Upon a Change of Control Event occurs---------------------------------------------------- Control.
(a) Upon the occurrence of a Change of Control, unless each holder of -------- Securities shall have the right to require the Company shall have previously to repurchase all or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make an offer to purchase all any part of the such holder's Securities pursuant to the offer described below (the “"Change of Control Offer”") at a purchase price in cash (the “"Change of Control Payment”Purchase Price") equal to 101.0101% of the aggregate principal amount of the Securitiesthereof, together with plus accrued and unpaid interestinterest thereon, if any, to the purchase date of purchase, (subject to the right of Holders holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event ).
(but not later than b) Within 30 days following any Change of Control Event)Control, the Company shall send (a) cause a notice of such the Change of Control Offer to be sent at least once to the Dow Xxxxx News Service or similar business news service in the United States and (b) send, by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder holder of the Securities to the Securities, at such holder's address of such Holder appearing in the security registerSecurity Register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
a notice stating: (1i) that a Change of Control has occurred and a Change of Control Offer is being made pursuant to this Clause D Section and that all Securities properly timely tendered pursuant to such will be accepted for payment; (ii) the Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price Purchase Price and the purchase date, which shall be be, subject to any contrary requirements of applicable law, a business day no earlier than 30 days nor later than 60 days from the date such notice is mailed mailed; (iii) the “circumstances and relevant facts regarding the Change of Control (including information with respect to pro forma historical income, cash flow and capitalization after giving effect to the Change of Control); (iv) that any Security (or portion thereof) accepted for payment (and duly paid on the Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;; (v) that any Securities (or portions thereof) not properly tendered shall continue to accrue interest; (vi) the procedures that Holders of Securities must follow in order to tender their Securities (or portions thereof) for payment and the procedures that Holders of Securities must follow in order to withdraw an election to tender Securities (or portions thereof) for payment; and (vii) all other instructions and materials necessary to enable Holders to tender Securities pursuant to the Change of Control Offer.
(5c) that Holders electing to have a Security purchased shall be required to surrender the Security, with an appropriate form duly completed, to the Company or its agent at the address specified in the notice at least three Business Days prior to the Change of Control Payment Date. Holders shall be entitled to withdraw their tendered Securities and their election to require if the Trustee or the Company to purchase such Securities, provided, however, that the Paying Agent receives, receives not later than the close of business on the fifth one Business Day preceding prior to the Change of Control Payment Date Date, a telegram, telex, facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the SecuritiesHolder, the principal amount of such Securities tendered the Security which was delivered for purchase, purchase by the Holder and a statement that such Holder is withdrawing its tendered Securities and its his election to have such Securities Security purchased;
(6) that the . Holders whose Securities are being repurchased purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;.
(7d) if such notice is mailed On or prior to the occurrence of a Change of Control EventPayment Date, the Company shall irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company or any of its Wholly Owned Subsidiaries is acting as the Paying Agent, segregate and hold in trust) in cash an amount equal to the Change of Control Payment payable to the Holders entitled thereto, to be held for payment in accordance with the provisions of this Section.
(e) On the Change of Control Payment Date, the Company shall deliver to the Trustee the Securities or portions thereof which have been properly tendered to and are to be accepted by the Company for payment. The Trustee or the Paying Agent shall, on the Change of Control Payment Date, mail or deliver payment to each tendering Holder of the Change of Control Payment. In the event that the aggregate Change of Control Payment is less than the amount delivered by the Company to the Trustee or the Paying Agent, the Trustee or the Paying Agent, as the case may be, shall deliver the excess to the Company immediately after the Change of Control Payment Date.
(f) At the time the Company delivers Securities to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers' Certificate stating that such Securities are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Security shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holder. Unless the Company defaults in the payment of the Change of Control Payment, each Security accepted for payment pursuant to the Change of Control Offer is conditional shall cease to accrue interest on and after the occurrence of such Change of Control Event; andPayment Date.
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. g) The Company shall comply comply, to the extent applicable, with the requirements of Section Rule 14(e) of under the Exchange Act and any other securities laws and or regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase purchase of Securities pursuant to a Change of Control Offerthis Section. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securitiesthis Section, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s its obligations described in the Indenture and the Securities under this Sec tion by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenture.
Appears in 1 contract
Repurchase at the Option of Holders. If (a) Upon the occurrence of a Change of Control, the Company will make an offer (a “Change of Control Event occursOffer”) to each Holder, unless the Company shall have has previously or concurrently mailed or sent a redemption notice with respect to all of the then Outstanding Securities outstanding Notes pursuant to Clause A and Clause B aboveSection 3.07 hereof, the Company shall make to repurchase all or any part (equal to $2,000 or an offer to purchase all integral multiple of the Securities pursuant to the offer described below (the “Change $1,000 in excess thereof) of Control Offer”) that Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the SecuritiesNotes repurchased, together with plus accrued and unpaid interest, if any, to on the Notes repurchased to, but not including, the date of purchase, subject to the right rights of Holders of record of the Securities Notes on the relevant record date to receive interest due on the relevant interest payment date. In connection with any date (the “Change of Control Event (but not later than Payment”). Within 30 days following any Change of Control Event)Control, unless the Company has previously or concurrently mailed or sent a redemption notice with respect to all of the outstanding Notes pursuant to Section 3.07 hereof, the Company shall send will cause to be mailed, by first class mail (or otherwise cause to be transmitted in accordance with the Applicable Procedures), a notice of such to each Holder describing the transaction or transactions that constitute the Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following informationstating:
(1) that a the Change of Control Offer is being made pursuant to this Clause D Section 4.15 and that all Securities properly Notes tendered pursuant to such Change of Control Offer shall will be accepted for payment by the Companypayment;
(2) the purchase price and the purchase date, which shall be no earlier than 30 10 days nor and no later than 60 days from the date such notice is mailed mailed, except in the case of a conditional Change of Control Offer made in advance of a Change of Control as described below (in which case the expected repurchase date will be stated and may be based on a date relative to the closing of the transaction that is expected to result in the Change of Control and which may be tolled until the closing of such transaction) (the “Change of Control Payment Date”);
(3) that any Securities Note not properly tendered shall remain Outstanding and will continue to accrue interest;
(4) that that, unless the Company defaults in the payment of the Change of Control Payment, all Securities Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrue interest on after the Change of Control Payment Date;
(5) that Holders shall electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that if the Paying Agent receives, not later than the close of business on the fifth second Business Day preceding the Change of Control Payment Date Date, a telegram, telex, facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the SecuritiesHolder, the principal amount of such Securities tendered Notes delivered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its his election to have such Securities the Notes purchased;; and
(67) that the Holders whose Securities Notes are being repurchased purchased only in part shall will be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities Notes surrendered, provided that the which unpurchased portion of such Securities must be equal to a minimum of $200,000 and 2,000 in principal amount or an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. thereof The Company shall will comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws or and regulations are applicable in connection with the repurchase of Securities pursuant to the Notes as a result of a Change of Control OfferControl. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securitiesthis Section 4.15, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached the Company’s its obligations described in the Indenture and the Securities under this Section 4.15 by virtue thereof. of such compliance.
(b) On the Change of Control Payment Date, the Company shallwill, to the extent permitted by lawlawful:
(1) accept for payment all Securities Notes or portions thereof of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities Notes or portions thereof so of Notes properly tendered; and
(3) deliver, deliver or cause to be delivered, delivered to the Trustee for cancellation the Securities so Notes properly accepted together with an Officer’s Officers’ Certificate to stating the Trustee stating that such Securities aggregate principal amount of Notes or portions thereof have been tendered to and of Notes being purchased by the Company.
(c) The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any. The Company shall will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(d) Notwithstanding anything to the contrary in this Section 4.15, the Company will not be required to make a Change of Control Offer following upon a Change of Control Event if (1) a third party (including an affiliate of the Company) makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company this Section 4.15 and purchases all Securities validly Notes properly tendered and not withdrawn under such the Change of Control Offer, or (2) notice of redemption has been given pursuant to Section 3.07 hereof unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control EventControl, conditional conditioned upon the consummation of such Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of Control at the outstanding common shares of time the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the IndentureOffer is made.
Appears in 1 contract
Samples: Indenture (Firstcash, Inc)
Repurchase at the Option of Holders. If a Change of Control Event occurs, unless occurs (as defined in the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveIndenture) at any time, the Company Issuer shall make an be required to offer to purchase all or any part (equal to $2,000 and an integral multiple of the Securities pursuant to the offer described below (the “Change $1,000 in excess thereof) of Control Offer”) this Note at a purchase price in cash (the “Change of Control Payment”) in an amount equal to 101.0101% of the aggregate principal amount of the Securitieshereof, together with plus any accrued and unpaid interest, premium, and Additional Interest, if any, any to the date of purchase, purchase (subject to the right rights of Holders of record of the Securities on the relevant record date dates to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control EventInterest Payment Date), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which date shall be no earlier than 30 days nor later than 60 days from the date notice of such notice offer is mailed (the “Change of Control Payment Date”);
(3) that any Securities not mailed, other than as required by law. The Issuer shall purchase all Notes properly and timely tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment Offer to Purchase and not withdrawn in accordance with the procedures set forth in such notice. The Offer to Purchase will state, among other things, the procedures that Holders of the Change Notes must follow to accept. If the aggregate amount of Control PaymentExcess Proceeds or Collateral Excess Proceeds totals at least $35.0 million, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receivesIssuer must commence, not later than the close ten Business Days after the Excess Proceeds or the Collateral Excess Proceeds exceed $35.0 million, an Offer to Purchase, the maximum principal amount of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile Notes and such other Pari Passu Indebtedness or electronic mail transmission or a letter setting forth the name Pari Passu Lien Obligations that may be purchased out of the Holder Excess Proceeds or Collateral Excess Proceeds. The offer price in any such Offer to Purchase will be equal to 100% of the Securities, the principal amount of such Securities tendered for purchase(or accreted value, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(eapplicable) of the Exchange Act Notes and any such other securities laws Pari Passu Indebtedness or Pari Passu Lien Obligations plus accrued and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securitiesunpaid interest and Additional Interest, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shallif any, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant date of repurchase, subject to the Change rights of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority Notes on the relevant Record Date to receive interest on the relevant interest payment date, and will be payable in principal amount of the then Outstanding Securities under the Indenturecash.
Appears in 1 contract
Samples: Indenture (FTS International, Inc.)
Repurchase at the Option of Holders. If a Change of Control Event occurs, unless occurs (as defined in the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveIndenture) at any time, the Company Issuer shall make an be required to offer to purchase all or any part (equal to $2,000 and an integral multiple of the Securities pursuant to the offer described below (the “Change $1,000 in excess thereof) of Control Offer”) this Note at a purchase price in cash (the “Change of Control Payment”) in an amount equal to 101.0101% of the aggregate principal amount of the Securitieshereof, together with plus any accrued and unpaid interest, if any, interest and premium to the date of purchase, purchase (subject to the right rights of Holders of record of the Securities on the relevant record date Record Date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control EventInterest Payment Date), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which date shall be no earlier than 30 days nor later than 60 days from the date notice of such notice offer is mailed (the “Change of Control Payment Date”);
(3) that any Securities not mailed, other than as required by law. The Issuer shall purchase all Notes properly and timely tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment Offer to Purchase and not withdrawn in accordance with the procedures set forth in such notice. The Offer to Purchase will state, among other things, the procedures that Holders of the Change Notes must follow to accept. If the aggregate amount of Control PaymentExcess Proceeds, all Securities accepted for payment pursuant to ABL Collateral Excess Proceeds or Fleet Collateral Excess Proceeds exceeds $35.0 million, the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receivesIssuer must commence, not later than the close ten Business Days after the ABL Collateral Excess Proceeds, Fleet Collateral Excess Proceeds or the Collateral Excess Proceeds exceeds $35.0 million, an Offer to Purchase, the maximum principal amount of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name Notes and such other Pari Passu Indebtedness that may be purchased out of the Holder Excess Proceeds, ABL Collateral Excess Proceeds or Fleet Collateral Excess Proceeds. The offer price in any such Offer to Purchase will be equal to 100% of the Securities, the principal amount of such Securities tendered for purchase(or accreted value, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(eapplicable) of the Exchange Act Notes and any such other securities laws Pari Passu Indebtedness plus accrued and regulations thereunder unpaid interest to the extent such laws or regulations are applicable in connection with date of repurchase, subject to the repurchase rights of Securities pursuant Holders of Notes on the relevant Record Date to a Change of Control Offer. To receive interest on the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control relevant Interest Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment and will be payable in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenturecash.
Appears in 1 contract
Samples: Indenture (FTS International, Inc.)
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuers or the Parent Guarantor shall offer to purchase on the Change of Control Purchase Date all or any part (equal to £100,000 or an integral multiple of £1,000 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date); provided that the Issuers and the Parent Guarantor shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A paragraph 6 or paragraph 7 of this Note. The Issuers shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders of the Notes must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds €50,000,000, the Parent Guarantor or the Issuers shall, within 20 Business Days, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as a multiple of £1,000) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Parent Guarantor may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of Notes and the then Outstanding Securities under principal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the Indentureamount of Excess Proceeds will be reset to zero.
Appears in 1 contract
Samples: Indenture (Ardagh Group S.A.)
Repurchase at the Option of Holders. If a Change of Control Event occurs, unless occurs (as defined in the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveIndenture) at any time, the Company Issuer shall make an be required to offer to purchase all of on the Securities pursuant to the offer described below (the “Change of Control Offer”Purchase Date all or any part (equal to €100,000 or an integral multiple of €1,000 in excess thereof) of this Note at a purchase price in cash (the “Change of Control Payment”) in an amount equal to 101.0101% of the aggregate principal amount of the Securitieshereof, together with plus any accrued and unpaid interestinterest and Additional Amounts, if any, to the date Change of purchase, Control Purchase Date (subject to the right rights of Holders holders of record of the Securities on the relevant record date Record Dates to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control EventInterest Payment Date), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which date shall be no earlier than 30 days nor later than 60 days from the date notice of such notice offer is mailed (the “Change of Control Payment Date”);
(3) that any Securities not mailed, other than as required by law. The Issuer shall purchase all Notes properly and timely tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the procedures that Holders of the Notes must follow to accrue interest on accept the Change of Control Payment Date;
Offer. When the aggregate amount of Excess Proceeds exceeds €25.0 million, the Issuer shall, within 30 Business Days, make an Excess Proceeds Offer to all holders of Notes and, at the Issuer’s election, to the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount, in the case of the Notes (5expressed as a minimum amount of €100,000 and integral multiples of €1,000 in excess thereof) of the Notes and any such Pari Passu Debt that Holders may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt shall be entitled payable in cash in an amount equal to withdraw their tendered Securities and their election to require (solely in the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name case of the Holder Notes) 100% of the Securities, the principal amount of such Securities tendered for purchase, Note and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6solely in the case of Pari Passu Debt) that no greater than 100% of the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered(or accreted value, provided that the unpurchased portion as applicable) of such Securities must be equal to a minimum of $200,000 Pari Passu Debt, plus, in each case, accrued and an integral multiple of $1,000 in principal amount in excess thereof;
(7) unpaid interest, if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shallany, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change date of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenturepurchase.
Appears in 1 contract
Samples: Indenture (InterXion Holding N.V.)
Repurchase at the Option of Holders. If upon a Change of Control Event occurs---------------------------------------------------- Control.
(a) Upon the occurrence of a Change of Control, unless each Holder shall ------- have the right to require the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make an offer to purchase all such Holder's Notes, in whole or in part, in a principal amount that is an integral multiple of the Securities $1,000, pursuant to the offer described below in Section 4.07(b) hereof (the “"Change of Control Offer”") at a purchase price in cash (the “"Change of Control Payment”Purchase Price") in cash equal to 101.0101% of the aggregate principal amount of the Securities, together with such Notes (or portions thereof) to be redeemed plus accrued and unpaid interestinterest and Liquidated Damages, if any, thereon to the date of purchase, purchase (the "Change of Control Payment Date") (subject to the right of Holders each Holder of record of the Securities on the relevant record date Record Date to receive interest due on the relevant interest payment date. In connection with Interest Payment Date).
(b) Within 30 calendar days after the date of any Change of Control Event (but not later than 30 days following any Control, the Company, or the Trustee at the request and expense of the Company, shall send to each Holder by first class mail, postage prepaid, a notice prepared by the Company describing the transaction or transactions that constitute the Change of Control Event), the Company shall send notice of such and stating:
(i) that a Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent has occurred and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D Section 4.07, and that all Securities properly Notes that are timely tendered pursuant to such will be accepted for payment;
(ii) the Change of Control Offer Purchase Price, and the Change of Control Payment Date, which date shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days from subsequent to the date such notice is mailed (the “Change of Control Payment Date”)mailed;
(3iii) that any Securities Notes or portions thereof not properly tendered shall remain Outstanding and or accepted for payment will continue to accrue interest;
(4iv) that that, unless the Company defaults in the payment of the Change of Control PaymentPurchase Price with respect thereto, all Securities Notes or portions thereof accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on from and after the Change of Control Payment Date;
(5v) that Holders any Holder electing to have any Notes or portions thereof purchased pursuant to a Change of Control Offer will be required to tender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(vi) that any Holder shall be entitled to withdraw their tendered Securities and their such election to require the Company to purchase such Securities, provided, however, that if the Paying Agent receives, not later than the close of business on the fifth second Business Day preceding the Change of Control Payment Date Date, a facsimile or electronic mail transmission or a letter letter, setting forth the name of the Holder of the SecuritiesHolder, the principal amount of such Securities tendered Notes delivered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its such Holder's election to have such Securities purchasedNotes or portions thereof purchased pursuant to the Change of Control Offer;
(6vii) that any Holder electing to have Notes purchased pursuant to the Holders Change of Control Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof;
(viii) if Certificated Notes have been issued, that any Holder of Certificated Notes whose Securities Certificated Notes are being repurchased purchased only in part shall will be issued new Securities Certificated Notes equal in principal amount to the unpurchased portion of the Securities Certificated Note or Notes surrendered, provided which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof;
(ix) that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;Global Note; and
(7x) if any other information necessary to enable any Holder to tender Notes and to have such notice is mailed prior Notes purchased pursuant to this Section 4.07. If the occurrence of a Change of Control Event, stating Company requests that the Change of Control Offer is conditional on Trustee provide such notice, the occurrence Company shall provide the Trustee with the information required by this Section 4.07(b) in a timely manner and in no event more than 23 calendar days after the date of such Change of Control Event; andControl.
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(ec) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1i) accept for payment all Securities Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
, (2ii) irrevocably deposit with the Paying Agent Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the aggregate Change of Control Payment Purchase Price in respect of all Securities Notes or portions thereof so tendered; and
tendered and (3iii) deliver, deliver or cause to be delivered, delivered to the Trustee for cancellation the Securities Notes so accepted tendered together with an Officer’s Officers' Certificate to stating the Trustee stating that such Securities aggregate principal amount of Notes or portions thereof have been tendered to and being purchased by the Company. The Company Subject to the provisions of Section 4.01 hereof, the Paying Agent shall not be required promptly send by first class mail, postage prepaid, to make a Change each Holder of Control Offer following a Change of Control Event if a third party makes Notes so accepted for payment the Change of Control Offer in Purchase Price for such Notes or portions thereof. The Company shall publicly announce the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. For purposes of this Section 4.07, the Trustee shall act as the Paying Agent.
(id) Upon surrender and cancellation of a definitive agreement Certificated Note that is purchased in place for part pursuant to the Change of Control Offer, the Company shall promptly issue and the Trustee shall authenticate and deliver to the surrendering Holder of such Certificated Note a new Certificated Note equal in principal amount to the unpurchased portion of such surrendered Certificated Note; provided that each such new Certificated Note shall be in a principal -------- amount of $1,000 or an integral multiple thereof. Upon surrender of a Global Note that is purchased in part pursuant to a Change of Control Offer, the Paying Agent shall forward such Global Note to the Trustee who shall make a notation on Schedule A thereof to reduce the principal amount of such Global Note to an amount equal to the unpurchased portion of such Global Note, as provided in Section 2.05(c) hereof.
(e) The Company shall comply with the requirements of Section 14(e) of, and Rule 14e-1 under, the Exchange Act and any other securities laws or regulations to the extent such laws and regulations are applicable in connection with the purchase of Notes pursuant to a Change of Control Offer.
(f) Prior to complying with the provisions of this Section 4.07, but in any event within 30 days following a Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K belowshall either repay all outstanding Senior Indebtedness or obtain the requisite consents, if any, under all agreements governing outstanding Senior Indebtedness to permit the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the IndentureNotes required by this Section 4.07.
Appears in 1 contract
Repurchase at the Option of Holders. If (a) In the event of a Change of Control Event occurs, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveControl, the Company shall be required to make an offer to purchase all of the Securities pursuant to the offer described below (the “a "Change of Control Offer”") to each Holder to repurchase all or any part (equal to $1,000 or an integral multiple of $1,000) of that Holder's Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securities, together with Notes plus accrued and unpaid interestinterest and Liquidated Damages thereon, if any, to the date of purchase, subject to purchase (the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any "Change of Control Event (but not later than 30 Payment"). Within ten days following any Change of Control Event)Control, the Company shall send mail a notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of setting forth the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to procedures governing the Change of Control Offer shall cease to accrue interest on as required by the Change of Control Payment Date;Indenture.
(5b) that Holders shall be entitled to withdraw their tendered Securities and their election to require If the Company or a Subsidiary consummates any Asset Sales, within five days of each date on which the aggregate amount of Excess Proceeds exceeds $15 million, the Company shall commence an offer to all Holders of Notes (as "Asset Sale Offer") pursuant to Section 3.09 of the Indenture to purchase the maximum principal amount of Notes and such Securities, provided, however, other pari passu Indebtedness that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name may be purchased out of the Holder Excess Proceeds at an offer price in cash in an amount equal to 100% of the Securities, the principal amount (or 100% of the accreted value thereof, in the case of Indebtedness sold at a discount) plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date fixed for the closing of such Securities tendered for purchaseoffer, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent accordance with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with procedures set forth in the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control OfferIndenture. To the extent that the provisions aggregate amount of Notes and other Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Subsidiary) may use such remaining Excess Proceeds for any securities laws or regulations conflict with purpose not otherwise prohibited by the provisions Indenture. If the aggregate principal amount of Notes and other Indebtedness tendered pursuant to an Asset Sale Offer exceeds the Indenture or the Securitiesamount of Excess Proceeds, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture allocate such Excess Proceeds on a pro rata basis between such other Indebtedness and the Securities by virtue thereof. On Notes, and the Change of Control Payment Date, Trustee shall select the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause Notes to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make on a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis based upon the Change principal amount of Control, if at Notes tendered. Holders of Notes that are the time subject of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase purchase will receive an Asset Sale Offer from the Securities as a result Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled "Option of a Change of Control Event may be waived or modified at any time with Holder to Elect Purchase" on the written consent reverse of the Holders of a majority in principal amount of the then Outstanding Securities under the IndentureNotes.
Appears in 1 contract
Samples: Indenture (Avista Corp)
Repurchase at the Option of Holders. If (a) Upon the occurrence of a Change of Control, the Company will make an offer (a “Change of Control Event occursOffer”) to each Holder, unless the Company shall have has previously or concurrently mailed or sent a redemption notice with respect to all of the then Outstanding Securities outstanding Notes pursuant to Clause A and Clause B aboveSection 3.07 hereof, the Company shall make to repurchase all or any part (equal to $2,000 or an offer to purchase all integral multiple of the Securities pursuant to the offer described below (the “Change $1,000 in excess thereof) of Control Offer”) that Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the SecuritiesNotes repurchased, together with plus accrued and unpaid interest, if any, to on the Notes repurchased to, but not including, the date of purchase, subject to the right rights of Holders of record of the Securities Notes on the relevant record date to receive interest due on the relevant interest payment date. In connection with any date (the “Change of Control Event (but not later than 30 Payment”). Within 20 days following any Change of Control Event)Control, unless the Company has previously or concurrently mailed or sent a redemption notice with respect to all of the outstanding Notes pursuant to Section 3.07 hereof, the Company shall send will cause to be mailed, by first class mail (or otherwise cause to be transmitted in accordance with the Applicable Procedures), a notice of such to each Holder describing the transaction or transactions that constitute the Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following informationstating:
(1) that a the Change of Control Offer is being made pursuant to this Clause D Section 4.15 and that all Securities properly Notes tendered pursuant to such Change of Control Offer shall will be accepted for payment by the Companypayment;
(2) the purchase price and the purchase date, which shall be no earlier than 30 10 days nor and no later than 60 days from the date such notice is mailed mailed, except in the case of a conditional Change of Control Offer made in advance of a Change of Control as described below (in which case the expected repurchase date will be stated and may be based on a date relative to the closing of the transaction that is expected to result in the Change of Control and which may be tolled until the closing of such transaction) (the “Change of Control Payment Date”);
(3) that any Securities Note not properly tendered shall remain Outstanding and will continue to accrue interest;
(4) that that, unless the Company defaults in the payment of the Change of Control Payment, all Securities Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrue interest on after the Change of Control Payment Date;
(5) that Holders shall electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that if the Paying Agent receives, not later than the close of business on the fifth second Business Day preceding the Change of Control Payment Date Date, a telegram, telex, facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the SecuritiesHolder, the principal amount of such Securities tendered Notes delivered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its his election to have such Securities the Notes purchased;; and
(67) that the Holders whose Securities Notes are being repurchased purchased only in part shall will be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities Notes surrendered, provided that the which unpurchased portion of such Securities must be equal to a minimum of $200,000 and 2,000 in principal amount or an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. thereof The Company shall will comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws or and regulations are applicable in connection with the repurchase of Securities pursuant to the Notes as a result of a Change of Control OfferControl. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securitiesthis Section 4.15, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached the Company’s its obligations described in the Indenture and the Securities under this Section 4.15 by virtue thereof. of such compliance.
(b) On the Change of Control Payment Date, the Company shallwill, to the extent permitted by lawlawful:
(1) accept for payment all Securities Notes or portions thereof of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities Notes or portions thereof so of Notes properly tendered; and
(3) deliver, deliver or cause to be delivered, delivered to the Trustee for cancellation the Securities so Notes properly accepted together with an Officer’s Officers’ Certificate to stating the Trustee stating that such Securities aggregate principal amount of Notes or portions thereof have been tendered to and of Notes being purchased by the Company.
(c) The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any. The Company shall will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(d) Notwithstanding anything to the contrary in this Section 4.15, the Company will not be required to make a Change of Control Offer following upon a Change of Control Event if (1) a third party (including an affiliate of the Company) makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company this Section 4.15 and purchases all Securities validly Notes properly tendered and not withdrawn under such the Change of Control Offer, or (2) notice of redemption has been given pursuant to Section 3.07 hereof unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control EventControl, conditional conditioned upon the consummation of such Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of Control at the outstanding common shares of time the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with Offer is made.
(e) In the written consent of the event that Holders of a majority not less than 90% in aggregate principal amount of the then Outstanding Securities under outstanding Notes accept a Change of Control Offer and the IndentureCompany (or any third party making such Change of Control Offer in lieu of the Company as described above) purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 10 days following the repurchase pursuant to the Change of Control Offer described above, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to the Change of Control Payment plus accrued and unpaid interest on the Notes that remain outstanding, to, but not including, the date of repurchase, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date.
Appears in 1 contract
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuers or the Parent Guarantor shall offer to purchase on the Change of Control Purchase Date all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date); provided that the Issuers and the Parent Guarantor shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A paragraph 6 or paragraph 7 of this Note. The Issuers shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders of the Notes must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds the greater of $100,000,000 and 1.5% of Total Assets, the Parent Guarantor or the Issuers shall, within 20 Business Days, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as an integral multiple of $1,000 with respect to the Notes) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Parent Guarantor may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of Notes and the then Outstanding Securities under principal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the Indentureamount of Excess Proceeds will be reset to zero.
Appears in 1 contract
Samples: Indenture (Ardagh Group S.A.)
Repurchase at the Option of Holders. If a Change of Control Event occursIn the event that, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveSection 4.07 hereof, the Company Issuers shall make be required to commence an offer to all Holders to purchase all Notes (a "Repurchase Offer"), and they shall follow the procedures specified below. The Repurchase Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than five Business Days after the termination of the Securities pursuant to the offer described below Offer Period (the “Change of Control Offer”) "Purchase Date"), the Issuers shall purchase at a the purchase price (as determined in cash (accordance with Section 4.07 hereof, the “Change of Control Payment”) equal to 101.0% of the aggregate principal amount of Notes required to be purchased pursuant to Section 4.07 hereof, in the Securitiesaggregate (the "Offer Amount") or, together with if less than the Offer Amount has been tendered, all Notes tendered in response to such Repurchase Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, interest shall be paid to the date Person in whose name a Note is registered at the close of purchasebusiness on such record date, subject and no additional interest shall be payable to Holders who tender Notes pursuant to such Repurchase Offer. Upon the commencement of a Repurchase Offer, the Issuers shall send, by first class mail, a notice to the right of Holders of record Trustee and each of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mailHolders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to such Repurchase Offer. The Repurchase Offer shall be made to all Holders. The notice, which shall govern the Paying Agent and the Registrar, to each Holder of the Securities to the address terms of such Holder appearing in the security registerRepurchase Offer, or otherwise in accordance with Applicable Procedures of the Depositary, with the following informationshall state:
(1a) that a Change of Control the Repurchase Offer is being made pursuant to this Clause D Section 3.02 and that all Securities properly tendered pursuant to such Change Section 4.07 hereof, and the length of Control time the Repurchase Offer shall be accepted for payment by the Companyremain open;
(2b) the Offer Amount, the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Purchase Date”);
(3c) that any Securities Note not properly tendered or accepted for payment shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenture.
Appears in 1 contract
Repurchase at the Option of Holders. Asset Sales
(a) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(i) the Issuer (or the Restricted Subsidiary, as the case may be) receives consideration in respect of such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(ii) at least 50% of the consideration therefor received by the Issuer or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Issuer’s or such Restricted Subsidiary’s most recently available annual or quarterly balance sheet, of the Issuer or any of its Restricted Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement or similar agreement that releases the Issuer or such Restricted Subsidiary from further liability;
(B) any securities, notes or other obligations received by the Issuer or any such Restricted Subsidiary in such Asset Sale that are converted within 365 days by the Issuer or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and
(C) any Designated Non-cash Consideration received by the Issuer or any of its Restricted Subsidiaries in such Asset Sale, having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) (without giving effect to subsequent changes in value that is at the time outstanding), not to exceed 20% of the Consolidated Net Tangible Assets of the Issuer measured at the time the determination is made.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Issuer or its Restricted Subsidiaries may apply an amount equal to such Net Proceeds to, at its option, any combination of the following purposes:
(i) to permanently repay, prepay, redeem, purchase or repurchase Indebtedness of the Issuer or any of its Restricted Subsidiaries secured by a Lien and, if the Indebtedness so repaid is revolving credit Indebtedness, to correspondingly permanently reduce commitments with respect thereto; or
(ii) to reinvest in new assets and make any capital expenditure in or that is used or useful in a Permitted Business or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets), provided that (A) such capital expenditure or purchase is consummated within the later of (x) 365 days after the receipt of the Net Proceeds from the related Asset Sale and (y) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A) of this Section 6.16(b)(ii) the amount not so applied will be deemed to be Excess Proceeds (as defined below).
(c) Pending the final application of any such Net Proceeds, the Issuer may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraphs will constitute “Excess Proceeds.” If a Change on any date, the aggregate amount of Control Event occursExcess Proceeds exceeds $5.0 million, unless then within ten Business Days after such date, the Company shall have previously Issuer will make an offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other First-Lien Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or concurrently mailed a redemption notice redeem with proceeds of sale of assets, to purchase the maximum principal amount of Notes and such other First-Lien Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest to the date of purchase and will be payable in cash. The Issuer may satisfy the foregoing obligation with respect to such Excess Proceeds from an Asset Sale by making an Asset Sale Offer in advance of being required to do so by this Indenture (an “Advance Offer”) with respect to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make an offer to purchase all or part of the Securities pursuant to the offer described below available Excess Proceeds (the “Change Advance Portion”). If any Excess Proceeds remain unapplied after the consummation of Control an Asset Sale Offer”) at , the Issuer and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture, provided that pending any such application, the proceeds of the Asset Sale, whether assets, property or cash, are subject to a price in cash (Lien under the “Change of Control Payment”) equal to 101.0% of Security Documents. If the aggregate principal amount of Notes and other First-Lien Indebtedness tendered into such Asset Sale Offer exceeds the Securitiesamount of Excess Proceeds, together the Trustee will select the Notes and the Issuer or the respective agent for such other First-Lien Indebtedness shall select such other First-Lien Indebtedness to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of $1,000, or in integral multiples of $1,000 in excess thereof, shall be purchased. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero (regardless of whether there are any remaining Excess Proceeds upon such completion), and in the case of an Advance Offer, the Advance Portion shall be excluded in subsequent calculations of Excess Proceeds.
(e) Notwithstanding the foregoing, so long as any Notes remain outstanding, the Issuer will not, and will not permit any of its Subsidiaries to, directly or indirectly, consummate an Asset Sale that would constitute a sale, assignment, lease, transfer, conveyance or other disposition of any Material Assets.
(f) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries, taken as a whole, will be governed by Section 6.15 and/or Section 10.1, and not by the provisions of this Section 6.16.
(g) If the Asset Sale Offer purchase date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, interest will be paid to the date Person in whose name a Note is registered at the close of purchasebusiness on such Record Date, subject and no other interest will be payable to Holders who tender Notes pursuant to the right of Holders of record of Asset Sale Offer.
(h) Within five Business Days after the Securities on Issuer is obligated to make an Asset Sale Offer as described in the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event)preceding paragraphs, the Company shall send Issuer will deliver a written notice of such Change of Control Offer by first-class mail, with a copy to the TrusteeHolders, accompanied by such information regarding the Paying Agent Issuer and its Affiliates as the Registrar, Issuer in good faith believes will enable such Holders to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance make an informed decision with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant respect to such Change of Control Offer Asset Sale Offer. Such notice shall be accepted for payment by the Company;
(2) state, among other things, the purchase price and the purchase date, which shall be a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);delivered.
(3i) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;Without limiting the foregoing:
(4i) that unless the Company defaults in the payment any Holder may decline any offer of the Change of Control Payment, all Securities accepted for payment prepayment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Eventthis Section 6.16; and
(8) other instructions, as determined ii) the failure of any such Holder to accept or decline any such offer of prepayment shall be deemed to be an election by the Company, consistent with the covenant described hereunder, that a such Holder must follow to tender its Securities. decline such prepayment.
(j) The Company shall Issuer will comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder Applicable Securities Legislation to the extent such laws or regulations requirements are applicable in connection with the each repurchase of Securities Notes pursuant to a Change of Control an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations Applicable Securities Legislation conflict with the Asset Sale provisions of this Indenture, or compliance with the Asset Sale provisions of this Indenture or the Securitieswould constitute a violation of Applicable Securities Legislation, the Company shall Issuer will comply with the applicable securities laws Applicable Securities Legislation and regulations and shall will not be deemed to have breached its obligations under the Company’s obligations described in the Asset Sale provisions of this Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenturecompliance.
Appears in 1 contract
Repurchase at the Option of Holders. (a) If there is a Change of Control Event occurs, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveControl, the Company shall will be required to make an offer to purchase all of the Securities pursuant to the offer described below (the a “Change of Control Offer”) to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securities, together with thereof plus accrued and unpaid interest, if any, to the date of purchase, subject to the right rights of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Interest Payment Date (the “Change of Control Event (but Payment”); provided, that the Company will not later than be obligated to repurchase Notes in the event that it exercises its right to redeem all of the Notes as described in Section 3.07 of the Indenture, unless and until there is a default in payment of the applicable redemption price. Within 30 days following any Change of Control Event)Control, the Company shall send will mail a notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of setting forth the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to procedures governing the Change of Control Offer shall cease to accrue interest on as required by the Change of Control Payment Date;Indenture.
(5b) If the Company or a Subsidiary consummates any Asset Sales, within ten Business Days of each date on which the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company will commence an offer to all Holders of Notes and all holders of Other Priority Lien Debt containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (as “Asset Sale Offer”) pursuant to Section 3.09 of the Indenture to purchase the maximum principal amount of Notes (including any Additional Notes) that Holders shall may be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name purchased out of the Holder Excess Proceeds at an offer price in cash in an amount equal to 100% of the Securities, the principal amount thereof plus accrued and unpaid interest, if any, to the date fixed for the closing of such Securities tendered for purchaseoffer, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent accordance with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with procedures set forth in the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control OfferIndenture. To the extent that the provisions aggregate amount of Notes (including any securities laws or regulations conflict with Additional Notes) and Other Priority Lien Debt tendered pursuant to an Asset Sale Offer is less than the provisions of the Indenture or the SecuritiesExcess Proceeds, the Company shall comply with (or such Subsidiary) may use such deficiency for any purpose not otherwise prohibited by the applicable securities laws Indenture. If the aggregate principal amount of Notes and regulations and shall not be deemed to have breached Other Priority Lien Debt surrendered by Holders thereof exceeds the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change amount of Control Payment DateExcess Proceeds, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly Trustee shall select such tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause Notes and such other tendered Other Priority Lien Debt to be delivered, to purchased on a pro rata basis. Holders of Notes that are the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change subject of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase purchase will receive an Asset Sale Offer from the Securities as a result Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of a Change of Control Event may be waived or modified at any time with Holder to Elect Purchase” on the written consent reverse of the Holders of a majority in principal amount of the then Outstanding Securities under the IndentureNotes.
Appears in 1 contract
Samples: Indenture (Lbi Media Holdings Inc)
Repurchase at the Option of Holders. (a) If there is a Change of Control Event occursControl, unless each Holder of Notes will have the right to require the Company shall have previously to repurchase all or concurrently mailed a redemption notice with respect any part (equal to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make $1,000 or an offer to purchase all integral multiple thereof) of the Securities such Holder's Notes pursuant to the offer described below (the “"Change of Control Offer”") at a an offer price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securities, together with thereof plus accrued and unpaid interestinterest and Liquidated Damages thereon, if any, to the date of purchase, subject to purchase (the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any "Change of Control Event (but not later than 30 Payment"). Within ten days following any Change of Control Event)Control, the Company shall send will mail a notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of describing the Securities to the address of such Holder appearing in the security register, transaction or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) transactions that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of constitute the Change of Control Payment, all Securities accepted for payment and offering to repurchase Notes pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined procedures required by the Company, consistent with the covenant Indenture and described hereunder, that a Holder must follow to tender its Securitiesin such notice. The Company shall comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or and regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities Notes as a result of a Change of Control Event may be waived Control.
(b) If the Company or modified at a Subsidiary consummates any time with Asset Sales, as soon as practical, but in no event later than 10 business days in the written consent case of clause (i) below, and 45 business days, in the Holders case of a majority in clause (ii) below, after any date that the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall (i) commence an Asset Sale Offer to purchase the maximum principal amount of Notes and other Indebtedness of the then Outstanding Securities under Company that ranks pari passu in right of payment with the IndentureNotes (to the extent required by the instrument governing such other Indebtedness), that may be purchased out of the Excess Proceeds and (ii) to the extent that more than $10.0 million of Excess Proceeds remain following the offer to purchase Notes contemplated by the preceding clause (i), commence an Asset Sale Offer to purchase the maximum principal amount of Senior Subordinated Notes and other Indebtedness of the Company that ranks pari passu in right of payment with the Senior Subordinated Notes (to the extent required by the instrument governing such other Indebtedness), that may be purchased out of the Excess Proceeds. Any Notes or Senior Subordinated Notes, as applicable, and other Pari Passu Debt to be purchased pursuant to an Asset Sale Offer shall be purchased pro rata based on the aggregate principal amount of Notes, Senior Subordinated Notes and such other applicable Pari Passu Debt outstanding and all Notes and Senior Subordinated Notes shall be purchased at an offer price in cash equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, to the date of purchase (or if such Asset Sale Offer is with respect to any discount or zero coupon securities prior to the date of their full accretion, 100% of the accreted value thereof on the date of purchase). To the extent that any Excess Proceeds remain after completion of an Asset Sale Offer, the Company may use the remaining amount for general corporate purposes and the amount of Excess Proceeds shall be reset at zero. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related Asset Sale Offer Purchase Date and may elect to have such Notes purchased by completing the form titled "Option of Holder to Elect Purchase" on the reverse of the Notes.
Appears in 1 contract
Samples: Indenture (Printpack Inc)
Repurchase at the Option of Holders. If (a) Upon the occurrence of a Change of Control, the Company will make an offer (a “Change of Control Event occursOffer”) to each Holder, unless the Company shall have has previously or concurrently mailed or sent a redemption notice with respect to all of the then Outstanding Securities outstanding Notes pursuant to Clause A and Clause B aboveSection 3.07 hereof, the Company shall make to repurchase all or any part (equal to $2,000 or an offer to purchase all integral multiple of the Securities pursuant to the offer described below (the “Change $1,000 in excess thereof) of Control Offer”) that Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the SecuritiesNotes repurchased, together with plus accrued and unpaid interest, if any, to on the Notes repurchased to, but not including, the date of purchase, subject to the right rights of Holders of record of the Securities Notes on the relevant record date to receive interest due on the relevant interest payment date. In connection with any date (the “Change of Control Event (but not later than 30 Payment”). Within twenty days following any Change of Control Event)Control, unless the Company has previously or concurrently mailed or sent a redemption notice with respect to all of the outstanding Notes pursuant to Section 3.07 hereof, the Company shall send will cause to be mailed, by first class mail (or otherwise cause to be transmitted in accordance with the Applicable Procedures), a notice of such to each Holder describing the transaction or transactions that constitute the Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following informationstating:
(1) that a the Change of Control Offer is being made pursuant to this Clause D Section 4.15 and that all Securities properly Notes tendered pursuant to such Change of Control Offer shall will be accepted for payment by the Companypayment;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities Note not properly tendered shall remain Outstanding and will continue to accrue interest;
(4) that that, unless the Company defaults in the payment of the Change of Control Payment, all Securities Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrue interest on after the Change of Control Payment Date;
(5) that Holders shall electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that if the Paying Agent receives, not later than the close of business on the fifth second Business Day preceding the Change of Control Payment Date Date, a telegram, telex, facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the SecuritiesHolder, the principal amount of such Securities tendered Notes delivered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its his election to have such Securities the Notes purchased;; and
(67) that the Holders whose Securities Notes are being repurchased purchased only in part shall will be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities Notes surrendered, provided that the which unpurchased portion of such Securities must be equal to a minimum of $200,000 and 2,000 in principal amount or an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. thereof The Company shall will comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws or and regulations are applicable in connection with the repurchase of Securities pursuant to the Notes as a result of a Change of Control OfferControl. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securitiesthis Section 4.15, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached the Company’s its obligations described in the Indenture and the Securities under this Section 4.15 by virtue thereof. of such compliance.
(b) On the Change of Control Payment Date, the Company shallwill, to the extent permitted by lawlawful:
(1) accept for payment all Securities Notes or portions thereof of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities Notes or portions thereof so of Notes properly tendered; and
(3) deliver, deliver or cause to be delivered, delivered to the Trustee for cancellation the Securities so Notes properly accepted together with an Officer’s Officers’ Certificate to stating the Trustee stating that such Securities aggregate principal amount of Notes or portions thereof have been tendered to and of Notes being purchased by the Company.
(c) The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any. The Company shall will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(d) Notwithstanding anything to the contrary in this Section 4.15, the Company will not be required to make a Change of Control Offer following upon a Change of Control Event if (1) a third party (including an affiliate of the Company) makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company this Section 4.15 and purchases all Securities validly Notes properly tendered and not withdrawn under such the Change of Control Offer, or (2) notice of redemption has been given pursuant to Section 3.07 hereof unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control EventControl, conditional conditioned upon the consummation of such Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of Control at the outstanding common shares of time the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with Offer is made.
(e) In the written consent of the event that Holders of a majority not less than 90% in aggregate principal amount of the then Outstanding Securities under outstanding Notes accept a Change of Control Offer and the IndentureCompany (or any third party making such Change of Control Offer in lieu of the Company as described above) purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the repurchase pursuant to the Change of Control Offer described above, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to the Change of Control Payment plus accrued and unpaid interest on the Notes that remain outstanding, to, but not including, the date of repurchase, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date.
Appears in 1 contract
Samples: Indenture (Firstcash, Inc)
Repurchase at the Option of Holders. If a Change of Control Event occursIn the event that, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveSection 4.15 or Section 4.16 hereof, the Company shall make be required to commence an offer to all Holders to purchase all Notes (a "Repurchase Offer"), and they shall follow the procedures specified below. The Repurchase Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than five Business Days after the termination of the Securities pursuant to the offer described below Offer Period (the “Change of Control Offer”) at a price in cash (the “Change of Control Payment”) equal to 101.0% of the aggregate principal amount of the Securities, together with accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event"Purchase Date"), the Company shall send notice purchase at the purchase price (as determined in accordance with Section 4.15 hereof), the principal amount of Notes required to be purchased pursuant to Section 4.15 hereof, in the aggregate (the "Offer Amount") or, if less than the Offer Amount has been tendered, all Notes tendered in response to such Change Repurchase Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the person in whose name a Note is registered at the close of Control Offer business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to such Repurchase Offer. Upon the commencement of a Repurchase Offer, the Company shall send, by first-first class mail, a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to such Repurchase Offer. The Repurchase Offer shall be made to all Holders. The notice, which shall govern the Paying Agent and the Registrar, to each Holder of the Securities to the address terms of such Holder appearing in the security registerRepurchase Offer, or otherwise in accordance with Applicable Procedures of the Depositary, with the following informationshall state:
(1a) that a Change of Control the Repurchase Offer is being made pursuant to this Clause D Section 3.08 and that all Securities properly tendered pursuant to such Change Section 4.15 or Section 4.16, as the case may be, hereof, and the length of Control time the Repurchase Offer shall be accepted for payment by the Companyremain open;
(2b) the Offer Amount, the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Purchase Date”);
(3c) that any Securities Note not properly tendered or accepted for payment shall remain Outstanding and continue to accrue interest;
(4d) that that, unless the Company defaults default in the payment of the Change of Control Paymentmaking such payment, all Securities any Note accepted for payment pursuant to the Change of Control Repurchase Offer shall cease to accrue interest on after the Change of Control Payment Purchase Date;
(5e) that Holders electing to have a Note purchased pursuant to any Repurchase Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(f) that Holders electing to have a Note purchased pursuant to any Repurchase Offer shall be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice before the Purchase Date;
(g) that Holders shall be entitled to withdraw their tendered Securities and their election to require if the Company to purchase such SecuritiesCompany, provided, however, that the Depositary or the Paying Agent Agent, as the case may be, receives, not later than the close expiration of business on the fifth Business Day preceding the Change of Control Payment Date Offer Period, a telegram, telex, facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the SecuritiesHolder, the principal amount of such Securities tendered the Notes the Holder delivered for purchase, purchase and a statement that such Holder is withdrawing its tendered Securities and its his election to have such Securities Notes purchased;; and
(6h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Offer Amount, the Notes shall be selected for purchase pursuant to the terms of this Section 3.08, and that the Holders whose Securities are being repurchased Notes were purchased only in part shall be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
Notes surrendered (7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined or transferred by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenturebook-entry transfer).
Appears in 1 contract
Samples: Indenture (Grant Prideco Inc)
Repurchase at the Option of Holders. If a Change of Control Event occursIn the event that, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveSection 4.07 hereof, the Company Issuers shall make be required to commence an offer to all Holders to purchase all Notes (a "Repurchase Offer"), and they shall follow the procedures specified below. The Repurchase Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than five Business Days after the termination of the Securities pursuant to the offer described below Offer Period (the “Change of Control Offer”) "Purchase Date"), the Issuers shall purchase at a the purchase price (as determined in cash (accordance with Section 4.07 hereof, the “Change of Control Payment”) equal to 101.0% of the aggregate principal amount of Notes required to be purchased pursuant to Section 4.07 hereof, in the Securitiesaggregate (the "Offer Amount") or, together with if less than the Offer Amount has been tendered, all Notes tendered in response to such Repurchase Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, interest shall be paid to the date Person in whose name a Note is registered at the close of purchasebusiness on such record date, subject and no additional interest shall be payable to Holders who tender Notes pursuant to such Repurchase Offer. Upon the commencement of a Repurchase Offer, the Issuers shall send, by first class mail, a notice to the right of Holders of record Trustee and each of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mailHolders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to such Repurchase Offer. The Repurchase Offer shall be made to all Holders. The notice, which shall govern the Paying Agent and the Registrar, to each Holder of the Securities to the address terms of such Holder appearing in the security registerRepurchase Offer, or otherwise in accordance with Applicable Procedures of the Depositary, with the following informationshall state:
(1a) that a Change of Control the Repurchase Offer is being made pursuant to this Clause D Section 3.02 and that all Securities properly tendered pursuant to such Change Section 4.07 hereof, and the length of Control time the Repurchase Offer shall be accepted for payment by the Companyremain open;
(2b) the Offer Amount, the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Purchase Date”);
(3c) that any Securities Note not properly tendered or accepted for payment shall remain Outstanding and continue to accrue interest;
(4d) that that, unless the Company defaults Issuers default in the payment of the Change of Control Paymentmaking such payment, all Securities any Note accepted for payment pursuant to the Change of Control Repurchase Offer shall cease to accrue interest on after the Change of Control Payment Purchase Date;
(5e) that Holders electing to have a Note purchased pursuant to any Repurchase Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(f) that Holders electing to have a Note purchased pursuant to any Repurchase Offer shall be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Issuers, a Depositary, if appointed by the Issuers, or a Paying Agent at the address specified in the notice before the Purchase Date;
(g) that Holders shall be entitled to withdraw their tendered Securities and their election to require if the Company to purchase such SecuritiesIssuers, provided, however, that the Depositary or the Paying Agent Agent, as the case may be, receives, not later than the close expiration of business on the fifth Business Day preceding the Change of Control Payment Date Offer Period, a telegram, telex, facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the SecuritiesHolder, the principal amount of such Securities tendered the Notes the Holder delivered for purchase, purchase and a statement that such Holder is withdrawing its tendered Securities and its his election to have such Securities Notes purchased;; and
(6h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Offer Amount, the Notes shall be selected for purchase pursuant to the terms of this Section 3.02, and that the Holders whose Securities are being repurchased Notes were purchased only in part shall be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
Notes surrendered (7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined or transferred by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenturebook-entry transfer).
Appears in 1 contract
Samples: First Supplemental Indenture (Metricom Finance Inc)
Repurchase at the Option of Holders. If (a) Upon the occurrence of a Change of Control Event occursControl, unless and subject to any applicable limitations contained in the Senior Credit Agreement, each Holder will have the right to require the Company shall have previously to repurchase all or concurrently mailed a redemption notice with respect any part (equal to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make $1,000 Principal Amount at maturity or an offer to purchase all integral multiple thereof) of the Securities pursuant to the offer described below (the “Change of Control Offer”) each Holder's Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securities, together with accreted value thereof plus accrued and unpaid interest, if any, thereon to the date of purchase, purchase (subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Interest Payment Date) (the "Change of Control Event (but not later than Payment"). Within 30 days following any Change of Control Event)Control, the Company shall send mail a notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of setting forth the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to procedures governing the Change of Control Offer shall cease to accrue interest on as required by the Change of Control Payment Date;Indenture.
(5b) that Holders shall be entitled to withdraw their tendered Securities and their election to require If the Company or a Restricted Subsidiary consummates any Asset Dispositions, when the aggregate amount of Net Available Cash remaining after application in accordance with the provisions of Section 4.07 of the Indenture exceeds $20.0 million, the Company shall commence an offer to all Holders of Notes (an "Asset Sale Offer") pursuant to Section 3.09 of the Indenture to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the maximum principal amount of Notes that may be purchased out of the balance of such Securities tendered for purchaseNet Available Cash at an offer price in cash in an amount equal to 100% of the accreted value (without premium) thereof plus accrued and unpaid interest, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount if any, thereon to the unpurchased portion of date fixed for the Securities surrendered, provided that the unpurchased portion closing of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 offer, in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent accordance with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with procedures set forth in the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control OfferIndenture. To the extent that the provisions aggregate amount of any securities laws or regulations conflict with Notes tendered pursuant to an Asset Sale Offer is less than the provisions of the Indenture or the SecuritiesNet Available Cash available, the Company (or such Restricted Subsidiary) must use such deficiency in the manner specified in Section 4.07 of the Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Net Available Cash available, the Trustee shall comply select the Notes to be purchased on a pro rata basis in accordance with the applicable securities laws and regulations and shall not be deemed to have breached Indenture. Holders of Notes that are the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change subject of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase purchase will receive an Asset Sale Offer from the Securities as a result Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled "Option of a Change of Control Event may be waived or modified at any time with Holder to Elect Purchase" on the written consent reverse of the Holders of a majority in principal amount of the then Outstanding Securities under the IndentureNotes.
Appears in 1 contract
Samples: Indenture (Sunbeam Corp/Fl/)
Repurchase at the Option of Holders. (a) If there is a Change of Control Event occurs, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveControl, the Company shall will be required to make an offer to purchase all of the Securities pursuant to the offer described below (the a “Change of Control Offer”) to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securities, together with thereof plus accrued and unpaid interest, if any, to the date of purchase, subject to the right rights of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Interest Payment Date (the “Change of Control Event (but Payment”); provided, that the Company will not later than be obligated to repurchase Notes in the event that it exercises its right to redeem all of the Notes as described in Section 3.07 of the Indenture, unless and until there is a default in payment of the applicable redemption price. Within 30 days following any Change of Control Event)Control, the Company shall send will mail a notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of setting forth the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to procedures governing the Change of Control Offer shall cease to accrue interest on as required by the Change of Control Payment Date;Indenture.
(5b) that Holders shall be entitled to withdraw their tendered Securities and their election to require Within 60 days after the receipt of Excess Proceeds, the Company or such Restricted Subsidiary shall apply those Excess Proceeds at its option: (i) to repay Priority Lien Debt and if such Priority Lien Debt is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; or (ii) commence an offer to all Holders of Notes and all holders of Other Priority Lien Debt containing provisions similar to those set forth in the Indenture with respect to offers to purchase such Securities, provided, however, that or redeem with the Paying Agent receives, not later than the close proceeds of business on the fifth Business Day preceding the Change sales of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name assets pursuant to Section 3.09 (as “Asset Sale Offer”) of the Holder Indenture to purchase the maximum principal amount of Notes (including any Additional Notes) and such Other Priority Lien Debt that may be purchased out of the Securities, Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date fixed for the closing of such Securities tendered for purchaseoffer, and a statement that in accordance with the procedures set forth in the Indenture or the indenture or other agreement governing such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructionsOther Priority Lien Debt, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offerapplicable. To the extent that the provisions aggregate amount of Notes (including any securities laws or regulations conflict with Additional Notes) and Other Priority Lien Debt tendered pursuant to an Asset Sale Offer is less than the provisions of the Indenture or the SecuritiesExcess Proceeds, the Company shall comply with (or such Restricted Subsidiary) may use such deficiency for any purpose not otherwise prohibited by the applicable securities laws Indenture. If the aggregate principal amount of Notes (including any Additional Notes) and regulations and shall not be deemed to have breached Other Priority Lien Debt surrendered by holders thereof exceeds the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change amount of Control Payment DateExcess Proceeds, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly Trustee shall select such tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause Notes and such other tendered Other Priority Lien Debt to be delivered, to purchased on a pro rata basis. Holders of Notes that are the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change subject of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase purchase will receive an Asset Sale Offer from the Securities as a result Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of a Change of Control Event may be waived or modified at any time with Holder to Elect Purchase” on the written consent reverse of the Holders of a majority in principal amount of the then Outstanding Securities under the IndentureNotes.
Appears in 1 contract
Repurchase at the Option of Holders. Subject to the additional terms and conditions set forth in the Supplemental Indenture:
(a) If a Change of Control Event occurs, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall Issuers will make an offer to purchase all of the Securities pursuant to the offer described below (the a “Change of Control Offer”) to each Holder of Notes to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securities, together with Notes repurchased plus accrued and unpaid interest, if anyinterest on the Notes repurchased, to the date of purchase, subject to the right rights of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Interest Payment Date (the “Change of Control Event (but not later than Payment”). Within 30 days following any Change of Control Event)Control, the Company shall send Issuers will mail a notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of describing the Securities to the address of such Holder appearing in the security register, transaction or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) transactions that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of constitute the Change of Control Payment, all Securities accepted for payment pursuant to and setting forth the procedures governing the Change of Control Offer shall cease as required by the Supplemental Indenture. The Holder of this Note may elect to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission have this Note or a letter setting forth portion thereof in an authorized denomination purchased by completing the name form entitled “Option of the Holder of the Securities, the principal amount of such Securities tendered for purchase, to Elect Purchase” attached hereto and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered tendering this Note pursuant to the Change of Control Offer;.
(2b) deposit If Suburban Propane or any of its Restricted Subsidiaries consummates any Asset Sale, in certain circumstances specified in Section 10.11 of the Supplemental Indenture, the Issuers will commence an offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Paying Agent an amount equal Notes containing provisions similar to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements those set forth in the Supplemental Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (an “Asset Sale Offer”) pursuant to Section 11.10 of the Supplemental Indenture to purchase the maximum principal amount of Notes and other pari passu Indebtedness that may be purchased out of the Securities applicable Excess Proceeds. The offer price in any Asset Sale Offer will be equal to a Change 100% of Control Offer made by the Company principal amount thereof plus accrued and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything unpaid interest, to the contrary hereindate of purchase, a Change of Control Offer may and will be made payable in advance of a Change of Control Event, conditional upon cash in accordance with the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as procedures set forth in Clause K belowthe Supplemental Indenture. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the provisions Issuers may use those Excess Proceeds for any purpose not otherwise prohibited by the Supplemental Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee, subject to the procedures of DTC, will select the Notes and the Issuers will select such other pari passu Indebtedness to be purchased on a pro rata basis provided that the Notes held in the Indenture and form of global certificates will be selected in accordance with procedures of DTC. Holders of Notes that are the Securities relative to the Company’s obligation to make subject of an offer to repurchase purchase will receive an Asset Sale Offer from the Securities as a result Issuers prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the IndentureHolder to Elect Purchase” attached hereto.
Appears in 1 contract
Samples: First Supplemental Indenture (Suburban Propane Partners Lp)
Repurchase at the Option of Holders. If Upon the occurrence of a Change of Control Event occursControl, unless the Company each holder of Notes shall have previously the right to require the Issuer to repurchase all or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make an offer to purchase all any part of the Securities such holder's Notes pursuant to the offer described below (the “"Change of Control Offer”") at a purchase price in cash (the “"Change of Control Payment”Purchase Price") equal to 101.0101% of the aggregate principal amount of the Securitiesthereof, together with plus accrued and unpaid interest, if any, interest to the repurchase date of purchase, (subject to the right of Holders holders of record of the Securities on the relevant record date Record Date to receive interest due on the relevant interest payment date). In connection with any Change If the repurchase date is after a Record Date and on or before the relevant interest payment date, the accrued and unpaid interest, if any, will be paid to the person or entity in whose name the Note is registered at the close of Control Event (but not later than business on that Record Date, and no additional interest will be payable to holders whose Notes shall be subject to redemption. Within 30 days following any Change of Control Event)Control, the Company shall send Issuer shall:
(a) cause a notice of such the Change of Control Offer to be sent at least once to the Dow Xxxxx News Service or similar business news service in the United States; and
(b) send, by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder holder of the Securities to the Notes, at such holder's address of such Holder appearing in the security registerSecurity Register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following informationa notice stating:
(1) that a Change of Control has occurred and a Change of Control Offer is being made pursuant to this Clause D Section 4.11 of the Indenture and that all Securities properly Notes timely tendered pursuant to such Change of Control Offer shall will be accepted for payment by the Companypayment;
(2) the purchase price Change of Control Purchase Price and the purchase repurchase date, which shall be be, subject to any contrary requirements of applicable law, a business day no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”)mailed;
(3) that any Securities not properly tendered shall remain Outstanding the circumstances and continue relevant facts regarding the Change of Control (including information with respect to accrue interest;pro forma historical income, cash flow and capitalization after giving effect to the Change of Control); and
(4) the procedures that unless holders of Notes must follow in order to tender their Notes (or portions thereof) for payment, and the Company defaults procedures that holders of Notes must follow in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled order to withdraw their tendered Securities and their an election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile tender Notes (or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered portions thereof) for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securitiespayment. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall Issuer will not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company Issuer and purchases all Securities Notes validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything The Issuer shall comply, to the contrary hereinextent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to a Change of Control Offer may be made in advance Offer. To the extent that the provisions of a Change any securities laws or regulations conflict with the provisions of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K belowthis covenant, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time Issuer will comply with the written consent applicable securities laws and regulations and will not be deemed to have breached its obligations under this covenant by virtue of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenturesuch compliance.
Appears in 1 contract
Samples: Indenture (Arch of Wyoming LLC)
Repurchase at the Option of Holders. Change of Control
(a) If a Change of Control Event occurs, unless the Company shall have previously or concurrently mailed a redemption notice with respect Issuer will be required to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make an offer to purchase each Holder of Notes to repurchase all or any part (equal to $1,000 or an integral multiple of the Securities $1,000) of that Holder’s Notes pursuant to the offer described below (the “Change of Control Offer”) at ). In the Change of Control Offer, the Issuer will offer a price in cash payment (the “Change of Control Payment”) in cash equal to 101.0101% of the aggregate principal amount of the Securities, together with Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased to the date of purchase, subject to purchase (the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any “Change of Control Event Payment Date” which date will be no earlier than the date of such Change of Control).
(but not b) No later than 30 days following any Change of Control Event)Control, the Company shall send Issuer will mail a notice to each Holder describing the transaction or transactions that constitute the Change of such Control, offer to repurchase Notes on the Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of Payment Date specified in such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase datenotice, which shall date will be no earlier than 30 15 days nor and no later than 60 days from the date such notice is mailed and describe the procedures, as required by this Indenture, that Holders must follow in order to tender Notes (or portions thereof) for payment and withdraw an election to tender Notes (or portion thereof) for payment. Notwithstanding anything to the “contrary herein, a Change of Control Payment Date”);
(3) that Offer by the Issuer, or by any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless third party making a Change of Control Offer in lieu of the Company defaults Issuer as described below, may be made in the payment advance of a Change of Control, conditional upon such Change of Control if a definitive agreement is in place for the Change of Control Payment, all Securities accepted for payment pursuant to at the time of making the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;Offer.
(5c) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall Issuer will comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder Applicable Securities Legislation to the extent such laws or regulations requirements are applicable in connection with the repurchase of Securities pursuant to the Notes as a result of a Change of Control OfferControl. To the extent that the provisions of any securities laws or regulations Applicable Securities Legislation conflict with the Change of Control provisions of this Indenture, or compliance with the Change of Control provisions of this Indenture would constitute a violation of any such laws or the Securitiesregulations, the Company shall Issuer will comply with the applicable securities laws Applicable Securities Legislation and regulations and shall will not be deemed to have breached its obligations under the Company’s obligations described in the Change of Control provisions of this Indenture and the Securities by virtue thereof. of such compliance.
(d) On or before the Change of Control Payment Date, the Company shallIssuer will, to the extent permitted by lawlawful:
(1i) accept for payment all Securities Notes or portions thereof of Notes properly tendered pursuant to the Change of Control Offer;
(2ii) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities Notes or portions thereof so of Notes properly tendered; and
(3iii) deliver, deliver or cause to be delivered, delivered to the Trustee for cancellation the Securities Notes so accepted together with an Officer’s Officers’ Certificate to stating the Trustee stating that such Securities aggregate principal amount of Notes or portions thereof have been tendered to and of Notes being purchased by the Company. Issuer.
(e) On the Change of Control Payment Date, the Paying Agent will promptly mail or wire transfer to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new note will be in a principal amount of $1,000 or an integral multiple of $1,000 in excess thereof.
(f) The Company shall Issuer will advise the Trustee and the Holders of the Notes of the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(g) If the Change of Control Payment Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such Record Date, and no other interest will be payable to Holders who tender pursuant to the Change of Control Offer.
(h) If Holders of not be required less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer as described below, purchases all of the Notes validly tendered and not withdrawn by such Holders, the Issuer or such third party, as the case may be, will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem or purchase, as applicable, all Notes that remain outstanding following such purchase at a redemption price or purchase price, as the case may be, in cash equal to the applicable Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest, if any, to the Redemption Date.
(i) The provisions of Section 6.13 that require the Issuer to make a Change of Control Offer following a Change of Control Event if will be applicable whether or not any other provisions of this Indenture are applicable.
(j) Except as described in Section 6.13, the Holders on Notes shall not be permitted to require that the Issuer repurchase or redeem any Notes in the event of a takeover, recapitalization, privatization or similar transaction. In addition, Holders of Notes are not entitled to require the Issuer to purchase their Notes in circumstances involving a significant change in the composition of the Board of Directors of the Issuer.
(k) Notwithstanding anything to the contrary in this Section 6.13, the Issuer will not be required to make a Change of Control Offer upon a Change of Control if:
(i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the this Indenture and the Securities applicable to a Change of Control Offer made by the Company Issuer and purchases all Securities validly Notes properly tendered and not withdrawn under such the Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or ; or
(ii) a public offer Redemption Notice has been made given pursuant to acquire all Section 3.7, unless and until there is a default in payment of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indentureapplicable Redemption Price.
Appears in 1 contract
Samples: Trust Indenture
Repurchase at the Option of Holders. If a Change of Control Event occurs, unless occurs (as defined in the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveIndenture) at any time, the Company shall Issuer must make an offer to purchase all of the Securities pursuant to the offer described below (the “Change of Control Offer”) to each holder of Notes to repurchase all or any part (equal to €100,000 or an integral multiple of €1,000 in excess thereof) of this Note at a purchase price in cash (in an amount equal to 101% of the “principal amount thereof, plus any accrued and unpaid interest, if any, to, but not including, the Change of Control PaymentPurchase Date (subject to the rights of holders of record on the relevant Record Dates that are prior to the Change of Control Purchase Date to receive interest due on the Interest Payment Date). Unless the Issuer has unconditionally exercised its right to redeem all the Notes in accordance with the Indenture and all conditions to such redemption have been satisfied or waived, within 30 days following the date that the Parent Guarantor or any officer, director or manager of the Parent Guarantor becomes aware of any Change of Control, the Issuer shall deliver a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in Section 4.09(b) of the Indenture will constitute “Excess Proceeds.” The Parent Guarantor may also at any time, and the Parent Guarantor shall within ten Business Days after the aggregate amount of Excess Proceeds exceeds €30.0 million, make an offer to purchase (an “Excess Proceeds Offer”) from all Holders of Notes and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as a multiple of €1,000) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds (plus in each case all accrued interest on the Debt and the amount of all fees and expenses, including premiums, incurred in connection therewith). The offer price as to each Note and any such Pari Passu Debt will be payable in cash in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase and Additional Amounts, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, prepayment or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offerredemption. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Parent Guarantor may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased will be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of Notes and the then Outstanding Securities under principal amount or accreted value of such Pari Passu Debt tendered by each holder) or in the manner described in Section 3.02 of the Indenture. For the purposes of calculating the principal amount of any such Debt not denominated in euro, the euro-equivalent principal amount of such Debt shall be calculated based on the relevant currency exchange rate in effect as of the Business Day immediately prior to the date on which the Excess Proceeds Offer is announced. To the extent that any portion of the Net Cash Proceeds payable in respect of the Notes is denominated in a currency other than euro, the amount thereof payable in respect of such Notes shall not exceed the net amount of funds in euro that is actually received by the Parent Guarantor upon converting such portion of the Net Cash Proceeds into euro. Upon completion of each such Excess Proceeds Offer, the amount of Excess Proceeds will be reset to zero.
Appears in 1 contract
Samples: Indenture (Elster Group SE)
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuers or the Parent Guarantor shall offer to purchase on the Change of Control Purchase Date all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date); provided that the Issuers and the Parent Guarantor shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A paragraph 6 or paragraph 7 of this Note. The Issuers shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders of the Notes must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds €50,000,000, the Parent Guarantor or the Issuers shall, within 20 Business Days, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as an integral multiple of $1,000 with respect to the Dollar Notes) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Parent Guarantor may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of Notes and the then Outstanding Securities under principal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the Indentureamount of Excess Proceeds will be reset to zero.
Appears in 1 contract
Samples: Indenture (Ardagh Group S.A.)
Repurchase at the Option of Holders. (a) If there is a Change of Control Event occursControl, unless each Holder of Notes will have the right to require the Company shall have previously to repurchase all or concurrently mailed a redemption notice with respect any part (equal to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make $1,000 or an offer to purchase all integral multiple thereof) of the Securities such Holder's Notes pursuant to the offer described below (the “"Change of Control Offer”") at a an offer price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securities, together with thereof plus accrued and unpaid interestinterest and Liquidated Damages thereon, if any, to the date of purchase, subject to purchase (the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any "Change of Control Event (but not later than 30 Payment"). Within ten days following any Change of Control Event)Control, the Company shall send will mail a notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of describing the Securities to the address of such Holder appearing in the security register, transaction or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) transactions that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of constitute the Change of Control Payment, all Securities accepted for payment and offering to repurchase Notes pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined procedures required by the Company, consistent with the covenant Indenture and described hereunder, that a Holder must follow to tender its Securitiesin such notice. The Company shall comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or and regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities Notes as a result of a Change of Control Event may be waived Control.
(c) If the Company or modified at a Subsidiary consummates any time with Asset Sales, as soon as practical, but in no event later than 10 business days in the written consent case of clause (i) below, and 45 business days, in the Holders case of a majority in clause (ii) below, after any date that the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall (i) commence an Asset Sale Offer to purchase the maximum principal amount of Senior Notes and other Indebtedness of the then Outstanding Securities under Company that ranks pari passu in right of payment with the IndentureSenior Notes (to the extent required by the instrument governing such other Indebtedness), that may be purchased out of the Excess Proceeds and (ii) to the extent that more than $10.0 million of Excess Proceeds remain following the offer to purchase Senior Notes contemplated by the preceding clause (i), commence an Asset Sale Offer to purchase the maximum principal amount of Notes and other Indebtedness of the Company that ranks pari passu in right of payment with the Notes (to the extent required by the instrument governing such other Indebtedness), that may be purchased out of the Excess Proceeds. Any Notes or Senior Notes, as applicable, and other Pari Passu Debt to be purchased pursuant to an Asset Sale Offer shall be purchased pro rata based on the aggregate principal amount of Notes, Senior Notes and such other applicable Pari Passu Debt outstanding and all Notes and Senior Notes shall be purchased at an offer price in cash equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, to the date of purchase (or if such Asset Sale Offer is with respect to any discount or zero coupon securities prior to the date of their full accretion, 100% of the accreted value thereof on the date of purchase). To the extent that any Excess Proceeds remain after completion of an Asset Sale Offer, the Company may use the remaining amount for general corporate purposes and the amount of Excess Proceeds shall be reset at zero. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related Asset Sale Offer Purchase Date and may elect to have such Notes purchased by completing the form titled "Option of Holder to Elect Purchase" on the reverse of the Notes.
Appears in 1 contract
Samples: Indenture (Printpack Inc)
Repurchase at the Option of Holders. If a Change of Control Event occursoccurs at anytime, unless the Company shall Holder of this Note will have previously the right to require the Issuer to repurchase all or concurrently mailed a redemption notice with respect any part (equal to all the then Outstanding Securities $2,000 or an integral multiple of $1,000 in excess thereof) of this Note pursuant to Clause A and Clause B above, a Change of Control Offer on the Company shall make an offer to purchase all of terms set forth in the Securities pursuant to Indenture. In the offer described below (the “Change of Control Offer”) at , the Issuer shall offer a price payment in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the SecuritiesNotes repurchased, together with plus accrued and unpaid interestinterest and Additional Amounts, if any, on the Notes repurchased to the date Change of purchaseControl Purchase Date, subject to the right rights of Holders of record of the Securities on the relevant record date Record Date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Interest Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, ; provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall Issuer will not be required to make a Change of Control Offer following upon a Change of Control Event if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company Issuer and purchases all Securities validly Notes properly tendered and not withdrawn under such the Change of Control OfferOffer or (2) a notice of redemption has been given pursuant to paragraph 6 above, unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary hereincontained herein or in the Indenture, a Change of Control Offer may be made in advance of a Change of Control EventControl, conditional conditioned upon the consummation of such Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire Control at the time the Change of Control Offer is made. The Issuer shall purchase all Notes properly and timely tendered in the Change of Control Offer and not withdrawn in accordance with the outstanding common shares of the Company and has been declared unconditional. Except as procedures set forth in Clause K belowsuch notice. The Change of Control Offer will state, among other things, the provisions in procedures that Holders of the Indenture Notes must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds $20.0 million, within ten Business Days thereof, the Issuer will make an offer (an “Asset Sale Offer”) to all Holders and the Securities relative to the Company’s obligation to may make an offer to repurchase all holders of other Indebtedness that is secured by a Lien on the Securities as a result of a Change of Control Event may be waived or modified at any time Collateral and that is pari passu with the written consent Notes or any Note Guarantees with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets or events of loss to purchase, prepay or redeem the Holders of a majority in maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the then Outstanding Securities under Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest and Additional Amounts, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders on the relevant Record Date to receive interest due on the relevant Interest Payment Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuer may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into (or to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, or if the aggregate amount of Notes tendered pursuant to a Notes Offer exceeds the amount of the Net Proceeds so applied, the Trustee will select the Notes and such other pari passu Indebtedness, if applicable, to be purchased on a pro rata basis (or in the manner provided in the Indenture), based on the amounts tendered or required to be prepaid or redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
Appears in 1 contract
Repurchase at the Option of Holders. Subject to the additional terms and conditions set forth in the Indenture:
(a) If a Change of Control Event occurs, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall Issuers will make an offer to purchase all of the Securities pursuant to the offer described below (the a “Change of Control Offer”) to each Holder of 2021 Notes to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s 2021 Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securities, together with 2021 Notes repurchased plus accrued and unpaid interest, if anyinterest on the 2021 Notes repurchased, to the date of purchase, subject to the right rights of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Interest Payment Date (the “Change of Control Event (but not later than Payment”). Within 30 days following any Change of Control Event)Control, the Company shall send Issuers will mail a notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of describing the Securities to the address of such Holder appearing in the security register, transaction or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) transactions that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of constitute the Change of Control Payment, all Securities accepted for payment pursuant to and setting forth the procedures governing the Change of Control Offer shall cease as required by the Indenture. The Holder of this 2021 Note may elect to accrue interest on have this 2021 Note or a portion thereof in an authorized denomination purchased by completing the Change form entitled “Option of Control Payment Date;
(5) that Holders shall be entitled Holder to withdraw their tendered Securities and their election Elect Purchase” attached hereto , or transfer by book-entry transfer, to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than at the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described address specified in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept notice for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;.
(2b) deposit If Suburban Propane or any of its Restricted Subsidiaries consummates any Asset Sale, in certain circumstances specified in Section 9.11 of the Indenture, the Issuers will commence an offer to all Holders of 2021 Notes and all holders of other Indebtedness that is pari passu with the Paying Agent an amount equal 2021 Notes containing provisions similar to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (an “Asset Sale Offer”) pursuant to Section 10.11 of the Indenture to purchase the maximum principal amount of 2021 Notes and other pari passu Indebtedness that may be purchased out of the Securities applicable Excess Proceeds. The offer price in any Asset Sale Offer will be equal to a Change 100% of Control Offer made by the Company principal amount thereof plus accrued and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything unpaid interest, to the contrary hereindate of purchase, a Change of Control Offer may and will be made payable in advance of a Change of Control Event, conditional upon cash in accordance with the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as procedures set forth in Clause K belowthe Indenture. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the provisions in Issuers may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture Indenture. If the aggregate principal amount of 2021 Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the 2021 Notes and the Securities relative Issuers shall select such other pari passu Indebtedness to be purchased on a pro rata basis. Holders of 2021 Notes that are the Company’s obligation to make subject of an offer to repurchase purchase will receive an Asset Sale Offer from the Securities as a result Issuers prior to any related purchase date and may elect to have such 2021 Notes purchased by completing the form entitled “Option of a Change of Control Event may be waived Holder to Elect Purchase” attached hereto, or modified transfer by book-entry transfer, to the Paying Agent at any time with the written consent of address specified in the Holders of a majority in principal amount of notice for the then Outstanding Securities under the IndentureAsset Sale Offer.
Appears in 1 contract
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuers or the Parent Guarantor shall offer to purchase on the Change of Control Purchase Date all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date); provided that the Issuers and the Parent Guarantor shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A paragraph 6 or paragraph 7 of this Note. The Issuers shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders of the Notes must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds the greater of $100,000,000 and 1.5% of Total Assets, the Parent Guarantor or the Issuers shall, within 20 Business Days, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as an integral multiple of $1,000 with respect to the Notes) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Parent Guarantor may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of Notes and the then Outstanding Securities under principal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the Indentureamount of Excess Proceeds will be reset to zero.
Appears in 1 contract
Samples: Indenture (Ardagh Group S.A.)
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuers or the Parent Guarantor shall offer to purchase on the Change of Control Purchase Date all or any part (equal to €100,000 or an integral multiple of €1,000 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date); provided that the Issuers and the Parent Guarantor shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A paragraph 6 or paragraph 7 of this Note. The Issuers shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders of the Notes must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds the greater of $100,000,000 and 1.5% of Total Assets, the Parent Guarantor or the Issuers shall, within 20 Business Days, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as an integral multiple of €1,000) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Parent Guarantor may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of Notes and the then Outstanding Securities under principal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the Indentureamount of Excess Proceeds will be reset to zero.
Appears in 1 contract
Samples: Indenture (Ardagh Group S.A.)
Repurchase at the Option of Holders. If (a) Upon the occurrence of a Change of Control Event occurs, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveControl, the Company shall Issuer will make an offer to purchase all of the Securities pursuant to the offer described below (the a “Change of Control Offer”) to each Holder to repurchase all or any part (equal to, $200,000 or integral multiples of $1,000 in excess thereof) of that Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased, plus accrued and unpaid interest and Additional Amounts, if any, on the Notes repurchased to the date of purchase (the “Change of Control Payment”) equal to 101.0% of the aggregate principal amount of the Securities, together with accrued and unpaid interest, if any, to the date of purchase), subject to the right rights of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than Within 30 days following any Change of Control Event)Control, the Company shall send Issuer will mail a notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of setting forth the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to procedures governing the Change of Control Offer shall cease to accrue interest on as required by the Change of Control Payment Date;Indenture.
(5b) Any Net Proceeds from Asset Sales that Holders shall be entitled to withdraw their tendered Securities are not applied or invested as provided and their election to require within the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements time period set forth in the Indenture and will constitute “Excess Proceeds.” When the Securities applicable to a Change aggregate amount of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary hereinExcess Proceeds exceeds $25.0 million, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K belowwithin ten Business Days thereof, the provisions in the Indenture Issuer will make an Asset Sale Offer to all Holders of Notes and the Securities relative to the Company’s obligation to may make an offer to repurchase the Securities as a result all holders of a Change of Control Event may be waived or modified at any time other Indebtedness that is pari passu with the written consent of Notes or any Guarantee to purchase, prepay or redeem the Holders of a majority in maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the then Outstanding Securities under Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest and Additional Amounts, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuer and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into (or to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds or if the aggregate amount of Notes tendered pursuant to a Notes Offer exceeds the amount of the Net Proceeds so applied, the Issuer will select the Notes and such other pari passu Indebtedness, if applicable, to be purchased on a pro rata basis (or in the manner described in Section 3.02 of the Indenture), based on the amounts tendered or required to be prepaid or redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
Appears in 1 contract
Samples: Indenture (Twist Beauty S.a r.l. & Partners S.C.A.)
Repurchase at the Option of Holders. (a) If there is a Change of Control Event occurs, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveControl, the Company Issuers shall be required to make an offer to purchase all of the Securities pursuant to the offer described below (the a “Change of Control Offer”) pursuant to Section 4.08 of the Indenture to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of each Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securitiesthereof, together with plus accrued and unpaid interestinterest and Liquidated Damages, if any, thereon to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise purchase in accordance with Applicable Procedures the procedures set forth in the Indenture.
(b) If the Issuers or a Restricted Subsidiary consummates any Asset Sales, the Issuers shall be required to make an offer to all Holders of Notes (an “Asset Sale Offer”) pursuant to Sections 3.09 and 4.14 of the DepositaryIndenture to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, with the following information:
(1) that at a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change in cash equal to 100% of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of such Securities tendered for purchasepurchase in accordance with the procedures set forth in the Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, and the Trustee shall select the Notes to be purchased on a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;pro rata basis.
(6c) that If there is a Redemption Failure, the Holders whose Securities are being repurchased only in part Issuers shall be issued new Securities equal in principal amount required to the unpurchased portion make an offer (a “Redemption Failure Offer”) pursuant to Section 4.25 of the Securities surrendered, provided that the unpurchased portion of such Securities must be Indenture to repurchase all or any part (equal to a minimum of $200,000 and 1,000 or an integral multiple thereof) of $1,000 each Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase in excess thereof;accordance with the procedures set forth in the Indenture.
(7d) if such notice is mailed prior to Holders of Notes that are the occurrence subject of a Change of Control EventOffer, stating that an Asset Sale Offer or a Redemption Failure Offer, as applicable, will receive notice from the Change Issuers prior to any related purchase date and may elect to have such Notes purchased by completing the form titled “Option of Control Offer is conditional Holder to Elect Purchase” on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) reverse of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the IndentureNotes.
Appears in 1 contract
Samples: Indenture (Eldorado Resorts LLC)
Repurchase at the Option of Holders. If (a) In the event that, pursuant to Section 4.10 or Section 4.13, the Company shall be required to commence an offer to all Holders to purchase Notes and, at the Company’s option, holders of other Pari Passu Indebtedness (each, an “Offer to Purchase”), it shall follow the procedures specified below.
(b) Within 25 days following a Net Proceeds Offer Trigger Date and within 30 days following a Change of Control, the Company shall mail a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that triggered the Offer to Purchase and offering to purchase Notes on the date (the “Purchase Date”) specified in such notice. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Offer to Purchase. The Offer to Purchase shall be made to all Holders. The notice, which shall govern the terms of the Offer to Purchase, shall state:
(1) that the Offer to Purchase is being made pursuant to this Section 3.04 and Section 4.10 or 4.13, as the case may be, and the length of time the Offer to Purchase shall remain open;
(2) that either (a) in the case of a Change of Control Event occursOffer, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make an offer to purchase all of the Securities pursuant to the offer described below (the “Change of Control Offer”) has occurred and that such Holder has the right to require the Company to purchase such holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount thereof or (b) in the case of a Net Proceeds Offer, there are Net Proceeds in an amount such that such Holder has the right to require the Company to purchase such Holder’s Notes at 100% of the Securitiesprincipal amount thereof, together with in each case, plus accrued and unpaid interest, if any, to the date of purchase, Purchase Date (subject to the right of Holders of record of the Securities on the relevant record date Regular Record Date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy an Interest Payment Date that is on or prior to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted date fixed for payment by the Companypurchase);
(23) the purchase price and the purchase date, Purchase Date (which shall be a Business Day no earlier than 30 days nor later than 60 days from following the applicable Net Proceeds Offer Trigger Date, in the case of a Net Proceeds Offer, or the date such notice is mailed (mailed, in the “case of a Change of Control Payment Date”Offer);
(34) the aggregate principal amount of Notes (and in the case of a Net Proceeds Offer, Pari Passu Indebtedness) being offered to be purchased (the “Offer Amount”), which shall be equal to the Net Proceeds Offer Amount in the case of a Net Proceeds Offer and the principal amount of all Notes Outstanding in the case of a Change of Control Offer; information as to any other Pari Passu Indebtedness included in the Offer to Purchase (in the case of a Net Proceeds Offer); and the purchase price and the Purchase Date;
(5) that any Securities Note not properly tendered or accepted for payment shall remain Outstanding and continue to accrete or accrue interest;
(46) that that, unless the Company defaults in the payment of the Change of Control Paymentmaking such payment, all Securities any Note accepted for payment pursuant to the Change of Control Offer to Purchase shall cease to accrue interest on after the Change of Control Payment Purchase Date;
(57) that Holders electing to have a Note purchased pursuant to any Offer to Purchase shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or in accordance with Applicable Procedures by transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(8) that Holders shall be entitled to withdraw their tendered Securities and their election to require if the Company to purchase such SecuritiesCompany, provided, however, that the Depositary or the Paying Agent Agent, as the case may be, receives, not later than the close of business on the fifth second Business Day preceding prior to the Change of Control Payment Date Purchase Date, a telegram, telex, facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the SecuritiesHolder, the principal amount of such Securities tendered the Note the Holder delivered for purchase, purchase and a statement that such Holder is withdrawing its tendered Securities and its his election to have such Securities Note purchased;
(69) that, in the case of a Net Proceeds Offer and subject to Applicable Procedures, if the aggregate principal amount of Notes tendered by Holders into an Offer to Purchase exceeds the Offer Amount, the Trustee shall select the Notes to be purchased (i) if the Notes are listed, in compliance with the requirements of the principal national securities exchange on which the Notes are then listed or (ii) if the Notes are not so listed, on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000, shall be purchased);
(10) that the Holders whose Securities are being repurchased Notes were purchased only in part shall be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;Notes surrendered (or transferred by book-entry transfer); and
(711) if such notice is mailed prior to in the occurrence case of a Change of Control EventOffer, stating that the Change of Control Offer is conditional on the occurrence of circumstances and relevant facts regarding such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenture.
Appears in 1 contract
Samples: First Supplemental Indenture (TreeHouse Foods, Inc.)
Repurchase at the Option of Holders. If (a) In the event that, pursuant to Section 4.10 or Section 4.13, the Company shall be required to commence an offer to all Holders to purchase Notes and, at the Company’s option, holders of other Pari Passu Indebtedness (each, an “Offer to Purchase”), it shall follow the procedures specified below.
(b) Within 25 days following a Net Proceeds Offer Trigger Date and within 30 days following a Change of Control, the Company shall mail a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that triggered the Offer to Purchase and offering to purchase Notes on the date (the “Purchase Date”) specified in such notice. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Offer to Purchase. The Offer to Purchase shall be made to all Holders. The notice, which shall govern the terms of the Offer to Purchase, shall state:
(1) that the Offer to Purchase is being made pursuant to this Section 3.09 and Section 4.10 or 4.13, as the case may be, and the length of time the Offer to Purchase shall remain open;
(2) that either (a) in the case of a Change of Control Event occursOffer, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make an offer to purchase all of the Securities pursuant to the offer described below (the “Change of Control Offer”) has occurred and that such Holder has the right to require the Company to purchase such holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount thereof or (b) in the case of a Net Proceeds Offer, there are Net Proceeds in an amount such that such Holder has the right to require the Company to purchase such Holder’s Notes at 100% of the Securitiesprincipal amount thereof, together with in each case, plus accrued and unpaid interest, if any, to the date of purchase, Purchase Date (subject to the right of Holders of record of the Securities on the relevant record date Regular Record Date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy an Interest Payment Date that is on or prior to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted date fixed for payment by the Companypurchase);
(23) the purchase price and the purchase date, Purchase Date (which shall be a Business Day no earlier than 30 days nor later than 60 days from following the applicable Net Proceeds Offer Trigger Date, in the case of a Net Proceeds Offer, or the date such notice is mailed (mailed, in the “case of a Change of Control Payment Date”Offer);
(34) the aggregate principal amount of Notes (and in the case of a Net Proceeds Offer, Pari Passu Indebtedness) being offered to be purchased (the “Offer Amount”), which shall be equal to the Net Proceeds Offer Amount in the case of a Net Proceeds Offer and the principal amount of all Notes outstanding in the case of a Change of Control Offer; information as to any other Pari Passu Indebtedness included in the Offer to Purchase (in the case of a Net Proceeds Offer); and the purchase price and the Purchase Date;
(5) that any Securities Note not properly tendered or accepted for payment shall remain Outstanding and continue to accrete or accrue interest;
(46) that that, unless the Company defaults in the payment of the Change of Control Paymentmaking such payment, all Securities any Note accepted for payment pursuant to the Change of Control Offer to Purchase shall cease to accrue interest on after the Change of Control Payment Purchase Date;
(57) that Holders electing to have a Note purchased pursuant to any Offer to Purchase shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(8) that Holders shall be entitled to withdraw their tendered Securities and their election to require if the Company to purchase such SecuritiesCompany, provided, however, that the Depositary or the Paying Agent Agent, as the case may be, receives, not later than the close of business on the fifth second Business Day preceding prior to the Change of Control Payment Date Purchase Date, a telegram, telex, facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the SecuritiesHolder, the principal amount of such Securities tendered the Note the Holder delivered for purchase, purchase and a statement that such Holder is withdrawing its tendered Securities and its his election to have such Securities Note purchased;
(69) that, in the case of a Net Proceeds Offer, if the aggregate principal amount of Notes tendered by Holders into an Offer to Purchase exceeds the Offer Amount, the Trustee shall select the Notes to be purchased (i) if the Notes are listed, in compliance with the requirements of the principal national securities exchange on which the Notes are then listed or (ii) if the Notes are not so listed, on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000, shall be purchased);
(10) that the Holders whose Securities are being repurchased Notes were purchased only in part shall be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;Notes surrendered (or transferred by book-entry transfer); and
(711) if such notice is mailed prior to in the occurrence case of a Change of Control EventOffer, stating that the Change of Control Offer is conditional on the occurrence of circumstances and relevant facts regarding such Change of Control Event; andControl.
(8) other instructionsc) If the Purchase Date is on or after a Regular Record Date and on or before the related Interest Payment Date, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company any accrued and unpaid interest shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder be paid to the extent Person in whose name a Note is registered at the close of business on such laws or regulations are applicable in connection with the repurchase of Securities Regular Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to a Change of Control Offer. To the extent that Offer to Purchase
(d) On or before the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Purchase Date, the Company shall, to the extent permitted by law:
(1) lawful, accept for payment all Securities payment, in accordance with Section 3.09(b)(9), the Offer Amount of Notes or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) Offer to Purchase, or if less than the Offer Amount has been tendered, all Notes tendered, shall deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of purchase price for all Securities Notes so accepted for purchase and shall deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof so tendered; and
(3) deliverwere accepted for payment by the Company in accordance with the terms of this Section 3.09. The Company, the Depositary or cause the Paying Agent, as the case may be, shall promptly mail or deliver to be delivered, each tendering Holder an amount equal to the Trustee purchase price of the Notes tendered by such Holder and accepted by the Company for cancellation purchase, and the Securities Company shall promptly issue a new Note, and the Trustee, upon written request from the Company shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted together with an Officer’s Certificate shall be promptly mailed or delivered by the Company to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the CompanyHolder thereof. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes publicly announce the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making results of the Change of Control Offer (i) a definitive agreement is in place for to Purchase on or as soon as practicable after the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the IndenturePurchase Date.
Appears in 1 contract
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuers or the Parent Guarantor shall offer to purchase on the Change of Control Purchase Date all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date); provided that the Issuers and the Parent Guarantor shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A paragraph 6 or paragraph 7 of this Note. The Issuers shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders of the Notes must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds the greater of $100,000,000 and 1.5% of Total Assets, the Parent Guarantor or the Issuers shall, within 20 Business Days, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as an integral multiple of $1,000 with respect to the Dollar Notes) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Parent Guarantor may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of Notes and the then Outstanding Securities under principal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the Indentureamount of Excess Proceeds will be reset to zero.
Appears in 1 contract
Samples: Indenture (Ardagh Group S.A.)
Repurchase at the Option of Holders. If Upon a Change of Control Event occurs, unless Trigger Event.
(a) Upon the Company shall have previously or concurrently mailed occurrence of a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveChange of Control Trigger Event, the Company Issuers shall make an offer to purchase repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of the Securities Notes pursuant to the offer described below (the “Change of Control Offer”) at a purchase price in cash (the “Change of Control PaymentPurchase Price”) equal to 101.0101% of the aggregate principal amount of the SecuritiesNotes repurchased, together with plus accrued and unpaid interestinterest on the Notes repurchased to, if anybut excluding, to the purchase date of purchase, (subject to the right of Holders of record of the Securities on the relevant record date Regular Record Date to receive interest due to, but excluding, the relevant Interest Payment Date falling prior to or on the relevant interest payment date. In connection with any Change of Control Event Payment Date (but not later than as defined below)). Each Holder shall have the right to require the Issuers to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes pursuant to such offer. Within 30 days following any Change of Control Trigger Event), unless the Issuers have mailed or delivered a redemption notice with respect to all of the outstanding Notes in accordance with Section 3.07, the Company shall send Issuers shall:
(i) cause a notice of such the Change of Control Offer by first-class mailto be sent at least once to the Dow Xxxxx News Service or similar business news service in the United States and Canada; and
(ii) deliver, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the Notes, at such Xxxxxx’s address of such Holder appearing in the security register, or otherwise securities register maintained in accordance with Applicable Procedures respect of the DepositaryNotes by the Registrar (the “Security Register”), with the following informationa notice stating:
(1A) that a Change of Control Trigger Event has occurred and a Change of Control Offer is being made pursuant to this Clause D Section 4.16 and that all Securities properly Notes timely tendered pursuant to such will be accepted for repurchase;
(B) the Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price Purchase Price and the purchase date, which shall be be, subject to any contrary requirements of applicable law, a Business Day no earlier than 30 15 days nor and no later than 60 days from the date such notice is mailed delivered (the “Change of Control Payment Date”);
(3C) that any Securities not properly tendered shall remain Outstanding the circumstances and continue to accrue interest;
(4) that unless the Company defaults in the payment of relevant facts regarding the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Trigger Event; and
(8) other instructions, as determined by D) the Company, consistent with the covenant described hereunder, procedures that a Holder Holders must follow in order to tender its Securitiestheir Notes (or portions thereof) for payment, and the procedures that Holders must follow in order to withdraw an election to tender Notes (or portions thereof) for payment. The Company shall comply Issuers will comply, to the extent applicable, with the requirements of Section 14(e) of under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the this Section 4.16 or other provisions of the Indenture or the Securitiesthis Indenture, the Company shall Issuers will comply with the applicable securities laws and regulations and shall will not be deemed to have breached the Company’s their obligations described in the under this Section 4.16 or other provisions of this Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:such compliance.
(1b) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall Issuers will not be required to make a Change of Control Offer for the Notes following the occurrence of a Change of Control Trigger Event if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the this Indenture and the Securities applicable to a Change of Control Offer made by the Company Issuers and purchases all Securities Notes validly tendered and not withdrawn under such Change of Control Offer, or (2) notice of redemption has been given pursuant to this Indenture, unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary herein, a A Change of Control Offer may be made in advance of a Change of Control Trigger Event, conditional contingent upon the such Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or Control at the time of making the Change of Control Offer.
(iic) a public offer has been made to acquire all If Holders of not less than 90% in aggregate principal amount of the outstanding common shares of the Company Notes validly tender and has been declared unconditional. Except as set forth do not withdraw such Notes in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived Offer and the Issuers, or modified any third party making a Change of Control Offer in lieu of the Issuers, purchase all of the Notes validly tendered and not withdrawn by such Holders, the Issuers or such third party will have the right, upon not less than 10 nor more than 60 days’ prior notice to Holders, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all Notes that remain outstanding following such purchase at any time a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date (subject to the right of Holders of record on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date).
(d) On the Change of Control Payment Date, the Issuers shall, to the extent lawful:
(i) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(ii) deposit with the written consent Paying Agent an amount equal to the Change of Control Purchase Price in respect of all Notes or portions of Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee or Paying Agent, on its behalf, the Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being tendered and purchased by the Issuers. The Paying Agent shall promptly mail or deliver to each Holder of Notes that has properly tendered its Notes the Change of Control Purchase Price for such Notes, and the Trustee shall promptly certify and mail or deliver (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
(e) If the Change of Control Payment Date is on or after a Regular Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered, at the close of business on such Regular Record Date, and no additional interest shall be payable to Holders who tender pursuant to the Change of Control Offer.
(f) The provisions described above that require the Issuers to make a Change of Control Offer following a Change of Control Trigger Event shall be applicable whether or not any other provisions of this Indenture are applicable. This Indenture does not contain provisions that permit the Holders of the Notes to require that the Issuers repurchase or redeem the Notes in the event of a majority in principal amount takeover, recapitalization or similar transaction that does not involve a Change of the then Outstanding Securities under the IndentureControl Trigger Event.
Appears in 1 contract
Samples: Indenture
Repurchase at the Option of Holders. (a) If there is a Change of Control Event occurs, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveControl, the Company shall will be required to make an offer to purchase all of the Securities pursuant to the offer described below (the a “Change of Control Offer”) to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof (or if a PIK Payment has been made, in minimum denominations of $1.00 and any integral multiple of $1.00 in excess thereof)) of each Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securities, together with thereof plus accrued and unpaid interest, if any, to the date of purchase, subject to the right rights of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Interest Payment Date (the “Change of Control Event (but Payment”); provided, that the Company will not later than be obligated to repurchase Notes in the event that it exercises its right to redeem all of the Notes as described in Section 3.07 of the Indenture, unless and until there is a default in payment of the applicable redemption price. Within 30 days following any Change of Control Event)Control, the Company shall send will mail a notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of setting forth the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to procedures governing the Change of Control Offer shall cease to accrue interest on as required by the Change of Control Payment Date;Indenture.
(5b) that Holders shall be entitled to withdraw their tendered Securities and their election to require Within 60 days after the receipt of Excess Proceeds, the Company or such Restricted Subsidiary shall apply those Excess Proceeds at its option: (i) to repay Senior Debt and if such Senior Debt is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; or (ii) commence an offer to all Holders of Notes and all holders of Parity Lien Debt containing provisions similar to those set forth in the Indenture with respect to offers to purchase such Securities, provided, however, that or redeem with the Paying Agent receives, not later than the close proceeds of business on the fifth Business Day preceding the Change sales of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name assets pursuant to Section 3.09 of the Holder Indenture (an “Asset Sale Offer”) to purchase the maximum principal amount of Notes (including any Additional Notes and any PIK Notes) and such Parity Lien Debt that may be purchased out of the Securities, Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date fixed for the closing of such Securities tendered for purchaseoffer, and a statement that in accordance with the procedures set forth in the Indenture or the indenture or other agreement governing such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructionsParity Lien Debt, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offerapplicable. To the extent that the provisions aggregate amount of Notes (including any securities laws or regulations conflict with Additional Notes and any PIK Notes) and Parity Lien Debt tendered pursuant to an Asset Sale Offer is less than the provisions of the Indenture or the SecuritiesExcess Proceeds, the Company shall comply with (or such Restricted Subsidiary) may use such deficiency for any purpose not otherwise prohibited by the applicable securities laws Indenture. If the aggregate principal amount of Notes (including any Additional Notes and regulations any PIK Notes) and shall not be deemed to have breached other Parity Lien Debt surrendered by holders thereof exceeds the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change amount of Control Payment DateExcess Proceeds, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly Trustee shall select such tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause Notes and such tendered Parity Lien Debt to be delivered, to purchased on a pro rata basis. Holders of Notes that are the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change subject of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase purchase will receive an Asset Sale Offer from the Securities as a result Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of a Change of Control Event may be waived or modified at any time with Holder to Elect Purchase” on the written consent reverse of the Holders of a majority in principal amount of the then Outstanding Securities under the IndentureNotes.
Appears in 1 contract
Samples: Indenture (Lbi Media Holdings Inc)
Repurchase at the Option of Holders. If there is a Change of Control Event occurs, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveControl, the Company Issuers shall be required to make an offer to purchase all of the Securities pursuant to the offer described below (the “a "Change of Control Offer”") to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of each Holder's Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securitiesthereof, together with plus accrued and unpaid interestinterest and Liquidated Damages, if any, thereon to the date of purchase, subject to purchase (the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any "Change of Control Event (but not later than Payment"). Within 30 days following any Change of Control Event)Control, the Company Issuers shall send mail a notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of setting forth the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to procedures governing the Change of Control Offer shall cease as required in the Indenture. Prior to accrue interest on the commencement of a Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such SecuritiesOffer, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only but in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to any event within 90 days after the occurrence of a Change of Control EventControl, stating that the Change Issuers shall (i) to the extent then required to be repaid, repay in full all outstanding Senior Debt, or (ii) obtain the requisite consents, if any, under all agreements governing outstanding Senior Debt to permit the repurchase of Control Offer is conditional on Notes as provided in Section 4.16 of the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its SecuritiesIndenture. The Company Issuers shall first comply with the requirements of the preceding sentence before they shall be required to repurchase Notes pursuant to Section 14(e) 4.16 of the Exchange Act Indenture.
(a) If the Issuers or a Restricted Subsidiary consummates any Asset Sales, within five Business Days of each date on which the aggregate amount of Excess Proceeds accumulated since May 23, 1996 exceeds $5.0 million, the Issuers shall be required to make an offer to all Holders of Notes (an "Asset Sale Offer") pursuant to Section 4.10 of the Indenture to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and any other securities laws unpaid interest and regulations thereunder Liquidated Damages, if any, thereon to the extent such laws or regulations are applicable date of purchase in connection accordance with the repurchase of Securities pursuant to a Change of Control Offerprocedures set forth in the Indenture. To the extent that the provisions aggregate amount of any securities laws or regulations conflict with Notes tendered pursuant to an Asset Sale Offer is less than the provisions of the Indenture or the SecuritiesExcess Proceeds, the Company shall comply with may use any remaining Excess Proceeds for general corporate purposes (subject to the applicable securities laws and regulations and shall not be deemed to have breached restrictions of the Company’s obligations described in Indenture). If the Indenture and aggregate principal amount of Notes surrendered by Holders thereof exceeds the Securities by virtue thereof. On the Change amount of Control Payment DateExcess Proceeds, the Company shall, to Trustee shall select the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause Notes to be delivered, to purchased on a pro rata basis. Holders of Notes that are the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change subject of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase purchase will receive an Asset Sale Offer from the Securities as a result Issuers prior to any related purchase date and may elect to have such Notes purchased by completing the form titled "Option of a Change of Control Event may be waived or modified at any time with Holder to Elect Purchase" on the written consent reverse of the Holders of a majority in principal amount of the then Outstanding Securities under the IndentureNotes.
Appears in 1 contract
Repurchase at the Option of Holders. (a) If there is a Change of Control Event occursTriggering Event, unless as and to the Company shall have previously or concurrently mailed a redemption notice with respect to all extent required by Section 4.17 of the then Outstanding Securities pursuant to Clause A and Clause B aboveIndenture, the Company shall will be required to make an offer to purchase all of the Securities pursuant to the offer described below (the a “Change of Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securities, together with thereof plus accrued and unpaid interestinterest and Additional Interest, if any, thereon to the date of purchase, subject to the right rights of Holders of record of the Securities on the relevant record date to receive interest and Additional Interest, if any, due on the relevant interest payment dateInterest Payment Date. In connection with any Change of Control Event (but not later than Within 30 days following any Change of Control Triggering Event), the Company shall send will mail a notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of setting forth the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to procedures governing the Change of Control Offer shall cease to accrue interest on as required by the Change of Control Payment Date;Indenture.
(5b) that Holders shall be entitled to withdraw their tendered Securities and their election to require If the Company or a Restricted Subsidiary of the Company consummates any Asset Sales, within 30 days of each date on which the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company will commence an offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase such Securities, provided, however, that or redeem with the Paying Agent receives, not later than the close proceeds of business on the fifth Business Day preceding the Change sales of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name assets (an “Asset Sale Offer”) pursuant to Section 3.09 Americas 91439192 5 of the Holder Indenture to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Securities, Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interest, if any, thereon to the date of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent accordance with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with procedures set forth in the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control OfferIndenture. To the extent that the provisions aggregate amount of any securities laws or regulations conflict with Notes and other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the provisions of the Indenture or the SecuritiesExcess Proceeds, the Company shall comply with (or such Restricted Subsidiary) may use such deficiency for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and the Company (or the applicable securities laws and regulations and agent for such pari passu indebtedness) shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause select such other pari passu Indebtedness to be delivered, to purchased on a pro rata basis. Holders of Notes that are the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change subject of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase purchase will receive an Asset Sale Offer from the Securities as a result Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option of a Change of Control Event may be waived or modified at any time with Holder to Elect Purchase” attached to the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the IndentureNotes.
Appears in 1 contract
Samples: Indenture (Xerium Technologies Inc)
Repurchase at the Option of Holders. If (a) In the event that, pursuant to Section 4.10 or Section 4.13, the Company shall be required to commence an offer to all Holders to purchase Notes and, at the Company’s option, holders of other Pari Passu Indebtedness (each, an “Offer to Purchase”), it shall follow the procedures specified below.
(b) Within 25 days following a Net Proceeds Offer Trigger Date and within 30 days following a Change of Control, the Company shall mail or electronically deliver if held by DTC a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that triggered the Offer to Purchase and offering to purchase Notes on the date (the “Purchase Date”) specified in such notice. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Offer to Purchase. The Offer to Purchase shall be made to all Holders. The notice, which shall govern the terms of the Offer to Purchase, shall state:
(1) that the Offer to Purchase is being made pursuant to this Section 3.09 and Section 4.10 or 4.13, as the case may be, and the length of time the Offer to Purchase shall remain open;
(2) that either (a) in the case of a Change of Control Event occursOffer, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make an offer to purchase all of the Securities pursuant to the offer described below (the “Change of Control Offer”) has occurred and that such Holder has the right to require the Company to purchase such holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount thereof or (b) in the case of a Net Proceeds Offer, there are Net Proceeds in an amount such that such Holder has the right to require the Company to purchase such Holder’s Notes at 100% of the Securitiesprincipal amount thereof, together with in each case, plus accrued and unpaid interest, if any, to the date of purchase, Purchase Date (subject to the right of Holders of record of the Securities on the relevant record date Regular Record Date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy an Interest Payment Date that is on or prior to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted date fixed for payment by the Companypurchase);
(23) the purchase price and the purchase date, Purchase Date (which shall be a Business Day no earlier than 30 days nor later than 60 days from following the applicable Net Proceeds Offer Trigger Date, in the case of a Net Proceeds Offer, or the date such notice is mailed (mailed, in the “case of a Change of Control Payment Date”Offer);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults aggregate principal amount of Notes (and in the payment case of a Net Proceeds Offer, Pari Passu Indebtedness) being offered to be purchased (the “Offer Amount”), which shall be equal to the Net Proceeds Offer Amount in the case of a Net Proceeds Offer and the principal amount of all Notes outstanding in the case of a Change of Control Payment, all Securities accepted for payment pursuant Offer; information as to any other Pari Passu Indebtedness included in the Change Offer to Purchase (in the case of Control Offer shall cease to accrue interest on a Net Proceeds Offer); and the Change of Control Payment purchase price and the Purchase Date;
(5) that Holders shall be entitled to withdraw their any Note not tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept accepted for payment all Securities shall continue to accrete or portions thereof properly tendered pursuant to the Change of Control Offeraccrue interest;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenture.
Appears in 1 contract
Repurchase at the Option of Holders. If a Change of Control Triggering Event occurs, unless the Company shall has exercised its right to redeem the Senior Notes in whole, Holders of Senior Notes will have previously or concurrently mailed a redemption notice with respect the right to all the then Outstanding Securities pursuant to Clause A and Clause B above, require the Company shall make to repurchase all or any part (equal to $2,000 or an offer to purchase all integral multiple of the Securities $1,000 in excess thereof) of their Senior Notes pursuant to the offer described below (the “Change of Control Offer”) at a price ). In the Change of Control Offer, the Company shall offer payment in cash equal to 101% of the aggregate principal amount of Senior Notes repurchased plus accrued and unpaid interest, if any, on the Senior Notes repurchased, to the date of purchase (the “Change of Control Payment”) equal to 101.0% of the aggregate principal amount of the Securities, together with accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date). In connection with any Change of Control Event (but not later than Within 30 days following any Change of Control Event)Triggering Event or, at the option of the Company, prior to any Change of Control, but after public announcement of the transaction or transactions that constitute or may constitute the Change of Control, the Company shall send a notice to Holders of such Senior Notes describing the transaction or transactions that constitute or may constitute the Change of Control Offer by first-class mail, with a copy Triggering Event and offering to repurchase the Trustee, Senior Notes on the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing date specified in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase datenotice, which shall date will be no earlier than 30 days nor and no later than 60 days from the date such notice is mailed sent (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding , pursuant to the procedures required by the Indenture and continue to accrue interest;
(4) that unless the Company defaults described in the payment of such notice, which offer will constitute the Change of Control PaymentOffer. The notice will, all Securities accepted if sent prior to the date on which the Change of Control occurs, state that the Change of Control Offer is conditioned on the Change of Control Triggering Event occurring on or prior to the applicable Change of Control Payment Date. On the Change of Control Payment Date, the Company shall be required, to the extent lawful, to:
(a) accept for payment all Senior Notes or portions of Senior Notes properly tendered pursuant to the Change of Control Offer shall cease Offer;
(b) deposit with the paying agent an amount equal to accrue interest on the Change of Control Payment Date;in respect of all Senior Notes or portions of Senior Notes properly tendered; and
(5c) that Holders deliver or cause to be delivered to the Trustee the Senior Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Senior Notes or portions of Senior Notes being purchased. The Company shall not be entitled required to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the make a Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to Offer upon the occurrence of a Change of Control EventTriggering Event if a third party makes such an offer in the manner, stating that at the Change of Control Offer is conditional on times and otherwise in compliance with the occurrence of such Change of Control Event; and
(8) other instructions, as determined requirements for an offer made by the CompanyCompany and the third party repurchases all Senior Notes properly tendered and not withdrawn under its offer. In addition, consistent with the covenant described hereunder, that Company shall not be required to repurchase any Senior Notes if it has given written notice of a Holder must follow to tender its Securitiesredemption in whole of the Senior Notes. The Company shall comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws or and regulations are applicable in connection with the repurchase of Securities pursuant to the Senior Notes as a result of a Change of Control OfferTriggering Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of the Indenture or the SecuritiesIndenture, the Company shall be required to comply with the applicable securities laws and regulations and shall will not be deemed to have breached the Company’s its obligations described in the Indenture and the Securities under this Article VII by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenturecompliance.
Appears in 1 contract
Samples: Seventh Supplemental Trust Indenture (Macy's, Inc.)
Repurchase at the Option of Holders. If a Change of Control Event occurs, unless occurs (as defined in the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveIndenture) at any time, the Company Issuer shall make an be required to offer to purchase all of on the Securities pursuant to the offer described below (the “Change of Control Offer”Purchase Date all or any part (equal to €50,000 or an integral multiple of €1,000 in excess thereof) of this Note at a purchase price in cash (the “Change of Control Payment”) in an amount equal to 101.0101% of the aggregate principal amount of the Securitieshereof, together with plus any accrued and unpaid interestinterest and Additional Amounts, if any, to the date Change of purchase, Control Purchase Date (subject to the right rights of Holders holders of record of the Securities on the relevant record date Record Dates to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control EventInterest Payment Date), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which date shall be no earlier than 30 days nor later than 60 days from the date notice of such notice offer is mailed (the “Change of Control Payment Date”);
(3) that any Securities not mailed, other than as required by law. The Issuer shall purchase all Notes properly and timely tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the procedures that Holders of the Notes must follow to accrue interest on accept the Change of Control Payment Date;
Offer. When the aggregate amount of Excess Proceeds exceeds €15.0 million, the Issuer shall, within 30 Business Days, make an Excess Proceeds Offer to all holders of Notes and, at the Issuer’s election, to the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in this Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount, in the case of the Notes (5expressed as a minimum amount of €50,000 and integral multiples of €1,000 in excess thereof) of the Notes and any such Pari Passu Debt that Holders may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt shall be entitled payable in cash in an amount equal to withdraw their tendered Securities and their election to require (solely in the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name case of the Holder Notes) 100% of the Securities, the principal amount of such Securities tendered for purchase, Note and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6solely in the case of Pari Passu Debt) that no greater than 100% of the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered(or accreted value, provided that the unpurchased portion as applicable) of such Securities must be equal to a minimum of $200,000 Pari Passu Debt, plus, in each case, accrued and an integral multiple of $1,000 in principal amount in excess thereof;
(7) unpaid interest, if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shallany, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change date of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenturepurchase.
Appears in 1 contract
Samples: Indenture (InterXion Holding N.V.)
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuers or the Parent Guarantor shall offer to purchase on the Change of Control Purchase Date all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date); provided that the Issuers and the Parent Guarantor shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A paragraph 6 or paragraph 7 of this Note. The Issuers shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders of the Notes must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds €50,000,000, the Parent Guarantor or the Issuers shall, within 20 Business Days, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as a multiple of $1,000) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Parent Guarantor may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of Notes and the then Outstanding Securities under principal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the Indentureamount of Excess Proceeds will be reset to zero.
Appears in 1 contract
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuers or the Parent Guarantor shall offer to purchase on the Change of Control Purchase Date all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date); provided that the Issuers and the Parent Guarantor shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A paragraph 6 or paragraph 7 of this Note. The Issuers shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders of the Notes must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds the greater of $100,000,000 and 1.5% of Total Assets, the Parent Guarantor or the Issuers shall, within 20 Business Days, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as an integral multiple of $1,000 with respect to the Notes) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Parent Guarantor may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under Notes and the Indentureprincipal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the amount of Excess Proceeds will be reset to zero.
Appears in 1 contract
Samples: Indenture (Ardagh Group S.A.)
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuers or the Parent Guarantor shall offer to purchase on the Change of Control Purchase Date all or any part (equal to $200,000 or an integral multiple of $1,000 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date) provided that the Issuers and the Parent Guarantor shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A Section 6, “Optional Redemption,” or Section 7, “Redemption upon Changes in Withholding Taxes,” of this Note. The Issuers shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders of the Notes must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds (i) for so long as any of the 2007 Senior Notes and the January 2010 Senior Notes remain outstanding, €25,000,000 and (ii) thereafter, €30,000,000, the Parent Guarantor or the Issuers shall, within 20 Business Days, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as a multiple of $1,000) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Parent Guarantor may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of Notes and the then Outstanding Securities under principal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the Indentureamount of Excess Proceeds will be reset to zero.
Appears in 1 contract
Repurchase at the Option of Holders. If there is a Change of Control Event occurs, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveControl, the Company Issuers shall be required to make an offer to purchase all of the Securities pursuant to the offer described below (the “a "Change of Control Offer”") to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of each Holder's Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securitiesthereof, together with plus accrued and unpaid interestinterest and Liquidated Damages, if any, thereon to the date of purchase, subject to purchase (the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any "Change of Control Event (but not later than Payment"). Within 30 days following any Change of Control Event)Control, the Company Issuers shall send mail a notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of setting forth the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to procedures governing the Change of Control Offer shall cease as required in the Indenture. Prior to accrue interest on the commencement of a Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such SecuritiesOffer, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only but in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to any event within 90 days after the occurrence of a Change of Control EventControl, stating that the Change Issuers shall (i) to the extent then required to be repaid, repay in full all outstanding Senior Debt, or (ii) obtain the requisite consents, if any, under all agreements governing outstanding Senior Debt to permit the repurchase of Control Offer is conditional on Notes as provided in Section 4.16 of the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its SecuritiesIndenture. The Company Issuers shall first comply with the requirements of the preceding sentence before they shall be required to repurchase Notes pursuant to Section 14(e) 4.16 of the Exchange Act Indenture. If the Issuers or a Restricted Subsidiary consummates any Asset Sales, within five Business Days of each date on which the aggregate amount of Excess Proceeds accumulated since May 23, 1996 exceeds $5.0 million, the Issuers shall be required to make an offer to all Holders of Notes (an "Asset Sale Offer") pursuant to Section 4.10 of the Indenture to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and any other securities laws unpaid interest and regulations thereunder Liquidated Damages, if any, thereon to the extent such laws or regulations are applicable date of purchase in connection accordance with the repurchase of Securities pursuant to a Change of Control Offerprocedures set forth in the Indenture. To the extent that the provisions aggregate amount of any securities laws or regulations conflict with Notes tendered pursuant to an Asset Sale Offer is less than the provisions of the Indenture or the SecuritiesExcess Proceeds, the Company shall comply with may use any remaining Excess Proceeds for general corporate purposes (subject to the applicable securities laws and regulations and shall not be deemed to have breached restrictions of the Company’s obligations described in Indenture). If the Indenture and aggregate principal amount of Notes surrendered by Holders thereof exceeds the Securities by virtue thereof. On the Change amount of Control Payment DateExcess Proceeds, the Company shall, to Trustee shall select the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause Notes to be delivered, to purchased on a pro rata basis. Holders of Notes that are the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change subject of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase purchase will receive an Asset Sale Offer from the Securities as a result Issuers prior to any related purchase date and may elect to have such Notes purchased by completing the form titled "Option of a Change of Control Event may be waived or modified at any time with Holder to Elect Purchase" on the written consent reverse of the Holders of a majority in principal amount of the then Outstanding Securities under the IndentureNotes.
Appears in 1 contract
Repurchase at the Option of Holders. If Upon the occurrence of a Change of Control Event occursControl, unless each Holder of Debentures will have the Company shall have previously right to require the Issuers to repurchase all or concurrently mailed a redemption notice with respect any part (equal to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make $1,000 or an offer to purchase all integral multiple thereof) of the Securities such Holder's Debentures pursuant to the offer described below (the “"Change of Control Offer”") at a an offer price in cash (the “"Change of Control Payment”") equal to 101.0101% of the Accreted Value thereof on the date of repurchase (if such date of repurchase is prior to August 1, 2003) or 101% of the aggregate principal amount thereof (if such date of the Securitiesrepurchase is on or after August 1, together with 2003) plus, in each case, accrued and unpaid interestinterest thereon, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 Within ten days following any Change of Control Event)Control, the Company shall send Issuers will mail a notice of such to each Holder describing the transaction or transactions that constitute the Change of Control Offer by first-class mail, with a copy and offering to repurchase Debentures on the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of date specified in such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase datenotice, which date shall be no earlier than 30 days nor and no later than 60 days from the date such notice is mailed (the “"Change of Control Payment Date”");
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities procedures required by this Indenture and their election to require the Company to purchase described in such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securitiesnotice. The Company shall Issuers will comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or and regulations are applicable in connection with the repurchase of Securities pursuant to the Debentures as a result of a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereofControl. On the Change of Control Payment Date, the Company shallIssuers will, to the extent permitted by law:
lawful, (1) accept for payment all Securities Debentures or portions thereof properly tendered pursuant to the Change of Control Offer;
, (2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities Debentures or portions thereof so tendered; and
tendered and (3) deliver, deliver or cause to be delivered, delivered to the Trustee for cancellation the Securities Debentures so accepted together with an Officer’s Officers' Certificate to stating the Trustee stating that such Securities aggregate principal amount at maturity of Debentures or portions thereof have been tendered to and being purchased by the CompanyIssuers. The Company Paying Agent will promptly mail to each Holder of Debentures so tendered the Change of Control Payment for such Debentures, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Debenture equal in principal amount at maturity to any unpurchased portion of the Debentures surrendered, if any; provided that each such new Debenture will be in a principal amount of $1,000 or an integral multiple thereof. The Issuers will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The Change of Control provisions described above will be applicable whether or not any other provisions of this Indenture are applicable. Except as described above with respect to a Change of Control, this Indenture does not contain provisions that permit the Holders of the Debentures to require that the Issuers repurchase or redeem the Debentures in the event of a takeover, recapitalization or similar transaction. The Issuers shall not be required to make a Change of Control Offer following upon a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the this Indenture and the Securities applicable to a Change of Control Offer made by the Company Issuers and purchases all Securities Debentures validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenture.
Appears in 1 contract
Repurchase at the Option of Holders. If a Change of Control Event (as defined in the Indenture) occurs, unless the Company shall have has previously or concurrently mailed or otherwise given a redemption notice with respect to all the then Outstanding Securities outstanding Notes pursuant to Clause A and Clause B aboveSection 3.1 of the Indenture, the Company shall make an offer to purchase all must commence, within 30 days of the Securities pursuant to the offer described below (the “occurrence of a Change of Control Offer”) Control, and consummate, by the Payment Date, an Offer to Purchase for all Notes then outstanding, at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securities, together with Notes repurchased plus accrued and unpaid interest, if anyinterest thereon, to the date of purchaserepurchase, subject to the right rights of Holders of record of the Securities Notes on the relevant record date Record Date to receive interest due on the relevant interest payment dateInterest Payment Date. The Company shall purchase all Notes tendered pursuant to the Offer to Purchase and not withdrawn in accordance with the procedures set forth in such notice. The Offer to Purchase shall state, among other things, the procedures that Holders of the Notes must follow to accept the Offer to Purchase. In connection accordance with the Indenture, if, as of the first day of any Change calendar month, the aggregate amount of Control Event Excess Proceeds (but not later than 30 days following any Change of Control Event)as defined in the Indenture) totals at least $75.0 million, the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receivesmust make, not later than the close of business on the fifth fifteenth Business Day preceding of such month, an Offer to Purchase to all Holders of Notes and, if required by the Change terms of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth any Pari Passu Debt, all holders of such Pari Passu Debt, to purchase the name maximum principal amount of Notes and such other Pari Passu Debt that may be purchased out of the Holder Excess Proceeds. The offer price in any such Offer to Purchase shall be equal to 100% of the Securities, the principal amount of the Notes and such Securities tendered for purchase, other Pari Passu Debt plus accrued and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount unpaid interest to the unpurchased portion date of the Securities surrenderedpurchase (or, provided that the unpurchased portion in respect of such Securities must Pari Passu Debt, such lesser price as may be equal to a minimum provided by the terms of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior Pari Passu Debt), subject to the occurrence rights of a Change Holders of Control Event, stating that the Change of Control Offer is conditional Notes on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by relevant Record Date to receive interest on the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control relevant Interest Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment and shall be payable in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenturecash.
Appears in 1 contract
Samples: Indenture (Sealed Air Corp/De)
Repurchase at the Option of Holders. If (a) In the event that, pursuant to Section 4.10 or Section 4.13, the Company shall be required to commence an offer to all Holders to purchase Notes and, at the Company’s option, holders of other Pari Passu Indebtedness (each, an “Offer to Purchase”), it shall follow the procedures specified below.
(b) Within 25 days following a Net Proceeds Offer Trigger Date and within 30 days following a Change of Control, the Company shall mail a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that triggered the Offer to Purchase and offering to purchase Notes on the date (the “Purchase Date”) specified in such notice. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Offer to Purchase. The Offer to Purchase shall be made to all Holders. The notice, which shall govern the terms of the Offer to Purchase, shall state:
(1) that the Offer to Purchase is being made pursuant to this Section 3.04 and Section 4.10 or 4.13, as the case may be, and the length of time the Offer to Purchase shall remain open;
(2) that either (a) in the case of a Change of Control Event occursOffer, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make an offer to purchase all of the Securities pursuant to the offer described below (the “Change of Control Offer”) has occurred and that such Holder has the right to require the Company to purchase such holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount thereof or (b) in the case of a Net Proceeds Offer, there are Net Proceeds in an amount such that such Holder has the right to require the Company to purchase such Holder’s Notes at 100% of the Securitiesprincipal amount thereof, together with in each case, plus accrued and unpaid interest, if any, to the date of purchase, Purchase Date (subject to the right of Holders of record of the Securities on the relevant record date Regular Record Date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy an Interest Payment Date that is on or prior to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted date fixed for payment by the Companypurchase);
(23) the purchase price and the purchase date, Purchase Date (which shall be a Business Day no earlier than 30 days nor later than 60 days from following the applicable Net Proceeds Offer Trigger Date, in the case of a Net Proceeds Offer, or the date such notice is mailed (mailed, in the “case of a Change of Control Payment Date”Offer);
(34) the aggregate principal amount of Notes (and in the case of a Net Proceeds Offer, Pari Passu Indebtedness) being offered to be purchased (the “Offer Amount”), which shall be equal to the Net Proceeds Offer Amount in the case of a Net Proceeds Offer and the principal amount of all Notes outstanding in the case of a Change of Control Offer; information as to any other Pari Passu Indebtedness included in the Offer to Purchase (in the case of a Net Proceeds Offer); and the purchase price and the Purchase Date;
(5) that any Securities Note not properly tendered or accepted for payment shall remain Outstanding and continue to accrete or accrue interest;
(46) that that, unless the Company defaults in the payment of the Change of Control Paymentmaking such payment, all Securities any Note accepted for payment pursuant to the Change of Control Offer to Purchase shall cease to accrue interest on after the Change of Control Payment Purchase Date;
(57) that Holders electing to have a Note purchased pursuant to any Offer to Purchase shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(8) that Holders shall be entitled to withdraw their tendered Securities and their election to require if the Company to purchase such SecuritiesCompany, provided, however, that the Depositary or the Paying Agent Agent, as the case may be, receives, not later than the close of business on the fifth second Business Day preceding prior to the Change of Control Payment Date Purchase Date, a telegram, telex, facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the SecuritiesHolder, the principal amount of such Securities tendered the Note the Holder delivered for purchase, purchase and a statement that such Holder is withdrawing its tendered Securities and its his election to have such Securities Note purchased;
(69) that, in the case of a Net Proceeds Offer, if the aggregate principal amount of Notes tendered by Holders into an Offer to Purchase exceeds the Offer Amount, the Trustee shall select the Notes to be purchased (i) if the Notes are listed, in compliance with the requirements of the principal national securities exchange on which the Notes are then listed or (ii) if the Notes are not so listed, on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000, shall be purchased);
(10) that the Holders whose Securities are being repurchased Notes were purchased only in part shall be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;Notes surrendered (or transferred by book-entry transfer); and
(711) if such notice is mailed prior to in the occurrence case of a Change of Control EventOffer, stating that the Change of Control Offer is conditional on the occurrence of circumstances and relevant facts regarding such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenture.
Appears in 1 contract
Samples: First Supplemental Indenture (Scotts Miracle-Gro Co)
Repurchase at the Option of Holders. (a) If there is a Change of Control Event occursControl, unless each Holder of Notes will have the right to require the Company shall have previously to repurchase all or concurrently mailed a redemption notice with respect any part (equal to all the then Outstanding Securities pursuant to Clause A and Clause B above, the Company shall make $1,000 or an offer to purchase all integral multiple thereof) of the Securities such Holder's Notes pursuant to the offer described below (the “"Change of Control Offer”") at a an offer price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securities, together with thereof plus accrued and unpaid interestinterest (including Additional Interest) thereon, if any, to the date of purchase, subject to purchase (the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any "Change of Control Event (but not later than Payment"). Within 30 days following any Change of Control Event)Control, the Company shall send will mail a notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of describing the Securities to the address of such Holder appearing in the security register, transaction or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) transactions that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of constitute the Change of Control Payment, all Securities accepted for payment and offering to repurchase Notes pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined procedures required by the Company, consistent with the covenant Indenture and described hereunder, that a Holder must follow to tender its Securitiesin such notice. The Company shall comply with the requirements of Section 14(e) of Rule l4e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or and regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities Notes as a result of a Change of Control Event may be waived Control.
(b) If the Company or modified at a Subsidiary consummates any time with Asset Sales, as soon as practicable, but in no event later than 30 Business Days, after any date that the written consent aggregate amount of Excess Proceeds exceeds $10.0 million, the Holders of a majority in Company shall commence an Asset Sale Offer to purchase the maximum principal amount of Notes and other Pari Passu Debt of the then Outstanding Securities under Company (to the extent required by the instrument governing such other Indebtedness), that may be purchased out of the Excess Proceeds. Any Notes and other Pari Passu Debt to be purchased pursuant to an Asset Sale Offer shall be purchased pro rata based on the aggregate principal amount of Notes and such other applicable Pari Passu Debt outstanding and all Notes shall be purchased at an offer price in cash (or in respect of such other Pari Passu Debt, in cash and/or such other property, if any, as may be provided for or permitted by the terms of such Indebtedness and the Indenture) equal to 100% of the principal amount thereof, plus accrued and unpaid interest (including Additional Interest), if any, to the date of purchase or, in respect of such other Pari Passu Debt, such lesser price, if any, as may be provided for by the terms of such Indebtedness (or if such Asset Sale Offer is with respect to any discount or zero coupon securities prior to the date of their full accretion, 100% of the accreted value thereof on the date of purchase). To the extent that any Excess Proceeds remain after completion of an Asset Sale Offer, the Company may use the remaining amount for any purpose permitted by the Indenture and the amount of Excess Proceeds shall be reset at zero. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related Asset Sale Offer Purchase Date and may elect to have such Notes purchased by completing the form titled "Option of Holder to Elect Purchase" on the reverse of the Notes.
Appears in 1 contract
Samples: Indenture (Caraustar Industries Inc)
Repurchase at the Option of Holders. If (a) Upon the occurrence of a Change of Control, the Company will make an offer (a “Change of Control Event occursOffer”) to each Holder, unless the Company shall have has previously or concurrently mailed or sent a redemption notice with respect to all of the then Outstanding Securities outstanding Notes pursuant to Clause A and Clause B aboveSection 3.07 hereof, the Company shall make to repurchase all or any part (equal to $2,000 or an offer to purchase all integral multiple of the Securities pursuant to the offer described below (the “Change $1,000 in excess thereof) of Control Offer”) that Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the SecuritiesNotes repurchased, together with plus accrued and unpaid interest, if any, to on the Notes repurchased to, but not including, the date of purchase, subject to the right rights of Holders of record of the Securities Notes on the relevant record date to receive interest due on the relevant interest payment date. In connection with any date (the “Change of Control Event (but not later than 30 Payment”). Within 20 days following any Change of Control Event)Control, unless the Company has previously or concurrently mailed or sent a redemption notice with respect to all of the outstanding Notes pursuant to Section 3.07 hereof, the Company shall send will cause to be mailed, by first class mail (or otherwise cause to be transmitted in accordance with the Applicable Procedures), a notice of such to each Holder describing the transaction or transactions that constitute the Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following informationstating:
(1) that a the Change of Control Offer is being made pursuant to this Clause D Section 4.15 and that all Securities properly Notes tendered pursuant to such Change of Control Offer shall will be accepted for payment by the Companypayment;
(2) the purchase price and the purchase date, which shall be no earlier than 30 10 days nor and no later than 60 days from the date such notice is mailed mailed, except in the case of a conditional Change of Control Offer made in advance of a Change of Control as described below (in which case the expected repurchase date will be stated and may be based on a date relative to the closing of the transaction that is expected to result in the Change of Control and which may be tolled until the closing of such transaction) (the “Change of Control Payment Date”);
(3) that any Securities Note not properly tendered shall remain Outstanding and will continue to accrue interest;
(4) that that, unless the Company defaults in the payment of the Change of Control Payment, all Securities Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrue interest on after the Change of Control Payment Date;
(5) that Holders shall electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that if the Paying Agent receives, not later than the close of business on the fifth second Business Day preceding the Change of Control Payment Date Date, a telegram, telex, facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the SecuritiesHolder, the principal amount of such Securities tendered Notes delivered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its his election to have such Securities the Notes purchased;; and
(67) that the Holders whose Securities Notes are being repurchased purchased only in part shall will be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities Notes surrendered, provided that the which unpurchased portion of such Securities must be equal to a minimum of $200,000 and 2,000 in principal amount or an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. thereof The Company shall will comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws or and regulations are applicable in connection with the repurchase of Securities pursuant to the Notes as a result of a Change of Control OfferControl. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securitiesthis Section 4.15, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached the Company’s its obligations described in the Indenture and the Securities under this Section 4.15 by virtue thereof. of such compliance.
(b) On the Change of Control Payment Date, the Company shallwill, to the extent permitted by lawlawful:
(1) accept for payment all Securities Notes or portions thereof of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities Notes or portions thereof so of Notes properly tendered; and
(3) deliver, deliver or cause to be delivered, delivered to the Trustee for cancellation the Securities so Notes properly accepted together with an Officer’s Officers’ Certificate to stating the Trustee stating that such Securities aggregate principal amount of Notes or portions thereof have been tendered to and of Notes being purchased by the Company.
(c) The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any. The Company shall will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(d) Notwithstanding anything to the contrary in this Section 4.15, the Company will not be required to make a Change of Control Offer following upon a Change of Control Event if (1) a third party (including an affiliate of the Company) makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company this Section 4.15 and purchases all Securities validly Notes properly tendered and not withdrawn under such the Change of Control Offer, or (2) notice of redemption has been given pursuant to Section 3.07 hereof unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control EventControl, conditional conditioned upon the consummation of such Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of Control at the outstanding common shares of time the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with Offer is made.
(e) In the written consent of the event that Holders of a majority not less than 90% in aggregate principal amount of the then Outstanding Securities under outstanding Notes accept a Change of Control Offer and the IndentureCompany (or any third party making such Change of Control Offer in lieu of the Company as described above) purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 10 days following the repurchase pursuant to the Change of Control Offer described above, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to the Change of Control Payment plus accrued and unpaid interest on the Notes that remain outstanding, to, but not including, the date of repurchase, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date.
Appears in 1 contract
Samples: Indenture (Firstcash, Inc)
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuer shall offer to purchase on the Change of Control Purchase Date all or any part (equal to £50,000 or an integral multiple of £1 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date), provided, that the Issuer shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A Section 6.01, “Optional Redemption,” or Section 7.01, “Redemption Upon Changes in Withholding Taxes,” of this Note. The Issuer shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds £25 million, the Issuer shall, within 20 Business Days thereafter, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt (which, in the case of Excess Proceeds which constitute proceeds from the sale or other disposition of Collateral, were secured by a pari passu Lien on such Collateral), to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as a multiple of £1) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Issuer may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of Notes and the then Outstanding Securities under principal amount or accreted value of such Pari Passu Debt tendered by each holder or by such other method as is customary with the Indentureprocedures of Euroclear or Clearstream, including the application of a “pool factor” to the nominal amount of each Note). Upon completion of each such Excess Proceeds Offer, the amount of Excess Proceeds will be reset to zero.
Appears in 1 contract
Samples: Indenture (Townfrost LTD)
Repurchase at the Option of Holders. If (a) Upon the occurrence of a Change of Control, the Company will make an offer (a “Change of Control Event occursOffer”) to each Holder, unless the Company shall have has previously or concurrently mailed or sent a redemption notice with respect to all of the then Outstanding Securities outstanding Notes pursuant to Clause A and Clause B aboveSection 3.07 hereof, the Company shall make to repurchase all or any part (equal to $2,000 or an offer to purchase all integral multiple of the Securities pursuant to the offer described below (the “Change $1,000 in excess thereof) of Control Offer”) that Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the SecuritiesNotes repurchased, together with plus accrued and unpaid interestinterest and Special Interest, if any, to on the Notes repurchased to, but not including, the date of purchase, subject to the right rights of Holders of record of the Securities Notes on the relevant record date to receive interest due on the relevant interest payment date. In connection with any date (the “Change of Control Event (but not later than 30 Payment”). Within twenty days following any Change of Control Event)Control, unless the Company shall send has previously or concurrently mailed or sent a redemption notice with respect to all of such the outstanding Notes pursuant to Section 3.07 hereof,’ the Company will mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following informationstating:
(1) that a the Change of Control Offer is being made pursuant to this Clause D Section 4.15 and that all Securities properly Notes tendered pursuant to such Change of Control Offer shall will be accepted for payment by the Companypayment;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities Note not properly tendered shall remain Outstanding and will continue to accrue interest;
(4) that that, unless the Company defaults in the payment of the Change of Control Payment, all Securities Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrue interest on after the Change of Control Payment Date;
(5) that Holders shall electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that if the Paying Agent receives, not later than the close of business on the fifth second Business Day preceding the Change of Control Payment Date Date, a telegram, telex, facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the SecuritiesHolder, the principal amount of such Securities tendered Notes delivered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its his election to have such Securities the Notes purchased;; and
(67) that the Holders whose Securities Notes are being repurchased purchased only in part shall will be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities Notes surrendered, provided that the which unpurchased portion of such Securities must be equal to a minimum of $200,000 and 2,000 in principal amount or an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. thereof The Company shall will comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws or and regulations are applicable in connection with the repurchase of Securities pursuant to the Notes as a result of a Change of Control OfferControl. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securitiesthis Section 4.15, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached the Company’s its obligations described in the Indenture and the Securities under this Section 4.15 by virtue thereof. of such compliance.
(b) On the Change of Control Payment Date, the Company shallwill, to the extent permitted by lawlawful:
(1) accept for payment all Securities Notes or portions thereof of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities Notes or portions thereof so of Notes properly tendered; and
(3) deliver, deliver or cause to be delivered, delivered to the Trustee for cancellation the Securities so Notes properly accepted together with an Officer’s Officers’ Certificate to stating the Trustee stating that such Securities aggregate principal amount of Notes or portions thereof have been tendered to and of Notes being purchased by the Company.
(c) The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any. The the Company shall will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(d) Notwithstanding anything to the contrary in this Section 4.15, the Company will not be required to make a Change of Control Offer following upon a Change of Control Event if (1) a third party (including an affiliate of the Company) makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company this Section 4.15 and purchases all Securities validly Notes properly tendered and not withdrawn under such the Change of Control Offer, or (2) notice of redemption has been given pursuant to Section 3.07 hereof unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control EventControl, conditional conditioned upon the consummation of such Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of Control at the outstanding common shares of time the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with Offer is made.
(e) In the written consent of the event that Holders of a majority not less than 90% in aggregate principal amount of the then Outstanding Securities under outstanding Notes accept a Change of Control Offer and the IndentureCompany (or any third party making such Change of Control Offer in lieu of the Company as described above) purchases all of the Notes held by such Holders, the Company will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the repurchase pursuant to the Change of Control Offer described above, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to the Change of Control Payment plus accrued and unpaid interest and Special Interest on the Notes that remain outstanding, to, but not including, the date of repurchase, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date.
Appears in 1 contract
Repurchase at the Option of Holders. If a Change of Control Triggering Event occurs, unless the Company shall has exercised its right to redeem the Senior Notes in whole, Holders of Senior Notes will have previously or concurrently mailed a redemption notice with respect the right to all the then Outstanding Securities pursuant to Clause A and Clause B above, require the Company shall make to repurchase all or any part (equal to $2,000 or an offer to purchase all integral multiple of the Securities $1,000 in excess thereof) of their Senior Notes pursuant to the offer described below (the “Change of Control Offer”) at a price ). In the Change of Control Offer, the Company shall offer payment in cash equal to 101% of the aggregate principal amount of Senior Notes repurchased plus accrued and unpaid interest, if any, on the Senior Notes repurchased, to the date of purchase (the “Change of Control Payment”) equal to 101.0% of the aggregate principal amount of the Securities, together with accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date). In connection with any Change of Control Event (but not later than Within 30 days following any Change of Control Event)Triggering Event or, at the option of the Company, prior to any Change of Control, but after public announcement of the transaction or transactions that constitute or may constitute the Change of Control, the Company shall send a notice to Holders of Senior Notes (or while any Securities are represented by one or more Global Notes, such notice shall be delivered to the Depositary for communication to entitled account Holders) describing the transaction or transactions that constitute or may constitute the Change of Control Offer by first-class mail, with a copy Triggering Event and offering to repurchase the Trustee, Senior Notes on the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing date specified in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase datenotice, which shall date will be no earlier than 30 days nor and no later than 60 days from the date such notice is mailed sent (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding , pursuant to the procedures required by the Indenture and continue to accrue interest;
(4) that unless the Company defaults described in the payment of such notice, which offer will constitute the Change of Control PaymentOffer. The notice will, all Securities accepted if sent prior to the date on which the Change of Control occurs, state that the Change of Control Offer is conditioned on the Change of Control Triggering Event occurring on or prior to the applicable Change of Control Payment Date. On the Change of Control Payment Date, the Company shall be required, to the extent lawful, to:
(a) accept for payment all Senior Notes or portions of Senior Notes properly tendered pursuant to the Change of Control Offer shall cease Offer;
(b) deposit with the paying agent an amount equal to accrue interest on the Change of Control Payment Date;in respect of all Senior Notes or portions of Senior Notes properly tendered; and
(5c) that Holders deliver or cause to be delivered to the Trustee the Senior Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Senior Notes or portions of Senior Notes being purchased. The Company shall not be entitled required to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the make a Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to Offer upon the occurrence of a Change of Control EventTriggering Event if a third party makes such an offer in the manner, stating that at the Change of Control Offer is conditional on times and otherwise in compliance with the occurrence of such Change of Control Event; and
(8) other instructions, as determined requirements for an offer made by the CompanyCompany and the third party repurchases all Senior Notes properly tendered and not withdrawn under its offer. In addition, consistent with the covenant described hereunder, that Company shall not be required to repurchase any Senior Notes if it has given written notice of a Holder must follow to tender its Securitiesredemption in whole of the Senior Notes. The Company shall comply with the requirements of Section 14(e) Rule 14e-1 of the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws or and regulations are applicable in connection with the repurchase of Securities pursuant to the Senior Notes as a result of a Change of Control OfferTriggering Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of the Indenture or the SecuritiesIndenture, the Company shall be required to comply with the applicable securities laws and regulations and shall will not be deemed to have breached the Company’s its obligations described in the Indenture and the Securities under this Article VII by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenturecompliance.
Appears in 1 contract
Samples: Trust Indenture (Macy's, Inc.)
Repurchase at the Option of Holders. If a Change of Control Triggering Event occurs, unless Weatherford Delaware has exercised its right to redeem the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B notes as described above, holders of notes will have the Company shall make right to require Weatherford Delaware to repurchase all or any part (equal to $2,000 or an offer to purchase all integral multiple of the Securities $1,000 in excess thereof) of their notes pursuant to the offer described below (the “Change of Control Offer”) at a price on the terms set forth in the notes. In the Change of Control Offer, Weatherford Delaware will be required to offer payment in cash equal to 101% of the aggregate principal amount of notes repurchased plus accrued and unpaid interest, if any, on the notes repurchased, to the date of purchase (the “Change of Control Payment”) equal to 101.0% of the aggregate principal amount of the Securities, together with accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date). In connection with any Change of Control Event (but not later than Within 30 days following any Change of Control Triggering Event), Weatherford Delaware will be required to mail a notice to holders of notes describing the Company shall send notice of such transaction or transactions that constitute the Change of Control Offer by first-class mail, with a copy Triggering Event and offering to repurchase the Trustee, notes on the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing date specified in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase datenotice, which shall date will be no earlier than 30 days nor and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined procedures required by the Company, consistent with the covenant notes and described hereunder, that a Holder in such notice. Weatherford Delaware must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of Rule 14e-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any other securities laws and regulations thereunder to the extent such those laws or and regulations are applicable in connection with the repurchase of Securities pursuant to the notes as a result of a Change of Control OfferTriggering Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of the Indenture or the Securitiesnotes, the Company shall Weatherford Delaware will be required to comply with the applicable securities laws and regulations and shall will not be deemed to have breached its obligations under the Company’s obligations described in Change of Control provisions of the Indenture and the Securities notes by virtue thereofof such conflicts. On the Change of Control Payment Date, the Company shallWeatherford Delaware will be required, to the extent permitted by law:
(1) lawful, to: • accept for payment all Securities notes or portions thereof of notes properly tendered pursuant to the Change of Control Offer;
(2) ; • deposit with the Paying Agent paying agent an amount equal to the aggregate Change of Control Payment in respect of all Securities notes or portions thereof so of notes properly tendered; and
(3) deliver, and • deliver or cause to be delivereddelivered to the Trustee the notes properly accepted. The definition of Change of Control includes a phrase relating to the direct or indirect sale, lease, transfer, conveyance or other disposition of “all or substantially all” of the properties or assets of Weatherford Bermuda and its subsidiaries taken as a whole. Although there is a limited body of case law interpreting the phrase “substantially all,” there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a holder of notes to require Weatherford Delaware to repurchase its notes as a result of a sale, lease, transfer, conveyance or other disposition of less than all of the assets of Weatherford Bermuda and its subsidiaries taken as a whole to another person may be uncertain. If holders of not less than 95% in aggregate principal amount of the outstanding notes validly tender and do not withdraw such notes in a Change of Control Offer and Weatherford Delaware, or any third party making a Change of Control Offer in lieu of Weatherford Delaware, as described below, purchases all of the notes validly tendered and not withdrawn by such holders, Weatherford Delaware will have the right, upon not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all notes that remain outstanding following such purchase at a redemption price in cash equal to the applicable Change of Control Payment plus, to the Trustee for cancellation extent not included in the Securities so accepted together with an Officer’s Certificate Change of Control Payment, accrued and unpaid interest, if any, to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Companydate of redemption. The Company shall Weatherford Delaware will not be required to make a Change of Control Offer following upon a Change of Control Triggering Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities indenture applicable to a Change of Control Offer made by the Company Weatherford Delaware and purchases all Securities validly notes properly tendered and not withdrawn under such the Change of Control Offer. Notwithstanding anything to For purposes of the contrary herein, a Change of Control Offer may be made in advance foregoing discussion of a Change of Control Event, conditional upon the Change of Control, if repurchase at the time option of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K belowholders, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenture.following definitions are applicable:
Appears in 1 contract
Repurchase at the Option of Holders. If a Change of Control Event occurs at any time, the Issuers or the Parent Guarantor shall offer to purchase on the Change of Control Purchase Date all or any part (equal to €100,000 or an integral multiple of €1,000 in excess thereof) of this Note at a purchase price in cash in an amount equal to 101% of the principal amount hereof, plus any accrued and unpaid interest, if any, to the Change of Control Purchase Date (subject to the rights of Holders of record on the relevant Record Dates to receive interest due on the relevant Interest Payment Date); provided that the Issuers and the Parent Guarantor shall not be required to make a Change of Control Offer if, when a Change of Control occurs, unless it has given notice of its intention to redeem all of the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities Notes pursuant to Clause A paragraph 6 or paragraph 7 of this Note. The Issuers shall purchase all Notes properly and Clause B abovetimely tendered in the Change of Control Offer and not withdrawn in accordance with the procedures set forth in such notice. The Change of Control Offer will state, among other things, the Company shall procedures that Holders of the Notes must follow to accept the Change of Control Offer. When the aggregate amount of Excess Proceeds exceeds the greater of $100,000,000 and 1.5% of Total Assets, the Parent Guarantor or the Issuers shall, within 20 Business Days, make an offer to purchase all of the Securities pursuant to the offer described below (the an “Change of Control Excess Proceeds Offer”) at from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in the Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as an integral multiple of €1,000) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash (the “Change of Control Payment”) in an amount equal to 101.0(solely in the case of the Notes) 100% of the aggregate principal amount of such Note and (solely in the Securitiescase of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, together with as applicable) of such Pari Passu Debt, plus in each case accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions aggregate principal amount of Notes and any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly such Pari Passu Debt tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to Excess Proceeds Offer is less than the aggregate Change amount of Control Payment in respect Excess Proceeds, the Parent Guarantor may use the amount of all Securities or portions thereof so tendered; and
(3) deliver, or cause such Excess Proceeds not used to be delivered, to the Trustee purchase Notes and Pari Passu Debt for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating general corporate purposes that such Securities or portions thereof have been tendered to and purchased are not otherwise prohibited by the CompanyIndenture. The Company shall not be required to make a Change If the aggregate principal amount of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times Notes and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities any such Pari Passu Debt validly tendered and not withdrawn under by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Change of Control Offer. Notwithstanding anything Pari Passu Debt to be purchased shall be selected by the contrary herein, Trustee on a Change of Control Offer may be made in advance of a Change of Control Event, conditional pro rata basis (based upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under Notes and the Indenture principal amount or accreted value of such Pari Passu Debt tendered by each holder). Upon completion of each such Excess Proceeds Offer, the amount of Excess Proceeds will be reset to zero.
Appears in 1 contract
Samples: Indenture (Ardagh Group S.A.)
Repurchase at the Option of Holders. If a Change of Control Event occursIn the event that, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveSection 1015, the Company shall make be required to commence an offer to all Holders to purchase all or a portion of their respective Securities (a “Repurchase Offer”), it shall follow the Securities pursuant procedures specified in such Section and, to the offer described below extent not inconsistent therewith, the procedures specified below. The Repurchase Offer shall remain open for a period of no less than 30 days and no more than 60 days following its commencement, except to the extent that a longer period is required by applicable law (the “Change Offer Period”). No later than three Business Days after the termination of Control Offer”) at a price in cash the Offer Period (the “Change of Control PaymentPurchase Date”) equal to 101.0% of the aggregate principal amount of the Securities, together with accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice purchase the principal amount of Securities required to be purchased pursuant to Section 1015 hereof (the “Offer Amount”) or, if less than the Offer Amount has been tendered, all Securities tendered in response to the Repurchase Offer. Payment for any Securities so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Security is registered at the close of business on such Change record date, and no additional interest shall be payable to Holders who tender Securities pursuant to the Repurchase Offer. Upon the commencement of Control Offer a Repurchase Offer, the Company shall send, by first-first class mail, a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Securities pursuant to the Repurchase Offer. The Repurchase Offer shall be made to all Holders. The notice, which shall govern the Paying Agent and the Registrar, to each Holder terms of the Securities to the address of such Holder appearing in the security registerRepurchase Offer, or otherwise in accordance with Applicable Procedures of the Depositary, with the following informationshall state:
(1) that a Change of Control the Repurchase Offer is being made pursuant to this Clause D Section 1108 and that all Securities properly tendered pursuant to such Change Section 1015 hereof, and the length of Control time the Repurchase Offer shall be accepted for payment by the Companyremain open;
(2) the Offer Amount, the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Purchase Date”);
(3) that any Securities Security not properly tendered or accepted for payment shall remain Outstanding and continue to accrue interest;
(4) that that, unless the Company defaults in the payment of the Change of Control Paymentmaking such payment, all Securities any Security (or portion thereof) accepted for payment pursuant to the Change of Control Repurchase Offer shall cease to accrue interest on after the Change of Control Payment Purchase Date;
(5) that Holders electing to have a Security purchased pursuant to a Repurchase Offer may elect to have Securities purchased in integral multiples of $2,000 only and integral multiples of $1,000 in excess thereof;
(6) that Holders electing to have a Security purchased pursuant to any Repurchase Offer shall be required to surrender the Security, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Security completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(7) that Holders shall be entitled to withdraw their tendered Securities and their election to require if the Company to purchase such SecuritiesCompany, provideda depositary, howeverif appointed by the Company, that or the Paying Agent Agent, as the case may be, receives, not later than the close expiration of business on the fifth Business Day preceding the Change of Control Payment Date Offer Period, a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the SecuritiesHolder, the principal amount of such Securities tendered the Security the Holder delivered for purchase, purchase and a statement that such Holder is withdrawing its tendered Securities and its his election to have such Securities Security purchased;
(68) that, if the aggregate amount of Securities surrendered by Holders exceeds the Offer Amount, the Trustee shall select the Securities to be purchased consistent with DTC procedures (with such adjustments as may be deemed necessary by the Trustee, subject to DTC procedures, so that only Securities in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased); and
(9) that the Holders whose Securities are being repurchased were purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrenderedsurrendered (or transferred by book-entry transfer). On the Purchase Date, provided the Company shall, to the extent lawful accept for payment on a pro rata basis to the extent necessary, the Offer Amount of Securities (or portions thereof) tendered pursuant to the Repurchase Offer, or if less than the Offer Amount has been tendered, all Securities tendered, and shall deliver to the Trustee an Officers’ Certificate stating that the unpurchased portion of such Securities must be equal to (or portions thereof) were accepted for payment by the Company in accordance with the terms of this Section 1108. The Company, a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) depositary, if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined appointed by the Company, consistent with or the covenant described hereunderPaying Agent, that as the case may be, shall promptly (but in any case not later than three days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of Securities tendered by such Holder, as the case may be, and accepted by the Company for purchase, and the Company shall promptly issue a new Security. The Trustee, upon written request from the Company shall authenticate and mail or deliver such new Security to such Holder, in a principal amount at maturity equal to any unpurchased portion of the Security surrendered. Any Security not so accepted shall be promptly mailed or delivered by the Company to the respective Holder must follow to tender its Securitiesthereof. The Company shall publicly announce the results of the Repurchase Offer on the Purchase Date. The Company shall comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Securities pursuant to a Change of Control Repurchase Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture Section 1015 or the Securitiesthis Section 1108, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s its obligations described in the Indenture and the Securities under Section 1015 or this Section 1108 by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenturecompliance.
Appears in 1 contract
Samples: Indenture (WE TV Studios LLC)
Repurchase at the Option of Holders. If a Change of Control Event occurs, unless occurs (as defined in the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveIndenture), the Company Issuer shall make an be required to offer to purchase on the Purchase Date all or any part of the Securities pursuant (equal to the offer described below (the “Change of Control Offer”Euro 1,000 or an integral multiple thereof) this Note at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the Securitieshereof, together with plus any accrued and unpaid interestinterest hereon, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase datePurchase Date, which date shall be no earlier than 30 days nor later than 60 days from the date notice of such notice offer is mailed (the “Change of Control Payment Date”);
(3) that any Securities not mailed, other than as required by law. The Issuer shall purchase all Notes properly and timely tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on and not withdrawn in accordance with the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase procedures set forth in such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the notice. The Change of Control Offer is conditional on will state, among other things, the occurrence procedures that Holders of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder Notes must follow to tender its Securities. The Company shall comply with accept the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, The Guarantor will advance to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant Issuer as a prepayment under the Intercompany Receivables an amount of funds sufficient to consummate the Change of Control Offer;
(2) deposit with , and the Paying Agent an amount equal Issuer's obligation to repurchase the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make Notes upon a Change of Control Offer following will be guaranteed on a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made subordinated basis by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything Guarantor pursuant to the contrary herein, a Change Parent Guarantees. Within five Business Days from the date the aggregate amount of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of ControlExcess Proceeds exceeds $10.0 million (taking into account income earned on such Excess Proceeds, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K belowany), the provisions in Guarantor, directly or through the Indenture and the Securities relative to the Company’s obligation Issuer, shall be required to make an offer to repurchase purchase the Securities as a result of a Change of Control Event may be waived or modified at Notes and, to the extent required by the terms thereof, any time other Debt ranking pari passu with the written consent Notes with similar provisions requiring the Guarantor or the Issuer to make an offer to purchase such Debt with the proceeds of an Asset Sale, which offer shall be in the Holders of a majority in principal amount of the then Outstanding Securities under Excess Proceeds, at a redemption price equal to 100% of the Indentureprincipal amount thereof plus accrued and unpaid interest thereon, if any (including Special Interest, if any), to the Purchase Date.
Appears in 1 contract
Repurchase at the Option of Holders. If (a) Upon the occurrence of a Change of Control, the Company will make an offer (a “Change of Control Event occursOffer”) to each Holder, unless the Company shall have has previously or concurrently mailed or sent a redemption notice with respect to all of the then Outstanding Securities outstanding Notes pursuant to Clause A and Clause B aboveSection 3.07 hereof, the Company shall make to repurchase all or any part (equal to $2,000 or an offer to purchase all integral multiple of the Securities pursuant to the offer described below (the “Change $1,000 in excess thereof) of Control Offer”) that Holder’s Notes at a purchase price in cash (the “Change of Control Payment”) equal to 101.0101% of the aggregate principal amount of the SecuritiesNotes repurchased, together with plus accrued and unpaid interest, if any, to on the Notes repurchased to, but not including, the date of purchase, subject to the right rights of Holders of record of the Securities Notes on the relevant record date to receive interest due on the relevant interest payment date. In connection with any date (the “Change of Control Event (but not later than Payment”). Within 30 days following any Change of Control Event)Control, unless the Company has previously or concurrently mailed or sent a redemption notice with respect to all of the outstanding Notes pursuant to Section 3.07 hereof, the Company shall send will cause to be mailed, by first class mail (or otherwise cause to be transmitted in accordance with the Applicable Procedures), a notice of such to each Holder describing the transaction or transactions that constitute the Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following informationstating:
(1) that a the Change of Control Offer is being made pursuant to this Clause D Section 4.15 and that all Securities properly Notes tendered pursuant to such Change of Control Offer shall will be accepted for payment by the Companypayment;
(2) the purchase price and the purchase date, which shall be no earlier than 30 10 days nor and no later than 60 days from the date such notice is mailed mailed, except in the case of a conditional Change of Control Offer made in advance of a Change of Control as described below (in which case the expected repurchase date will be stated and may be based on a date relative to the closing of the transaction that is expected to result in the Change of Control and which may be tolled until the closing of such transaction) (the “Change of Control Payment Date”);
(3) that any Securities Note not properly tendered shall remain Outstanding and will continue to accrue interest;
(4) that that, unless the Company defaults in the payment of the Change of Control Payment, all Securities Notes accepted for payment pursuant to the Change of Control Offer shall will cease to accrue interest on after the Change of Control Payment Date;
(5) that Holders shall electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that if the Paying Agent receives, not later than the close of business on the fifth second Business Day preceding the Change of Control Payment Date Date, a telegram, telex, facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the SecuritiesHolder, the principal amount of such Securities tendered Notes delivered for purchase, and a statement that such Holder Hxxxxx is withdrawing its tendered Securities and its his election to have such Securities the Notes purchased;; and
(67) that the Holders whose Securities Notes are being repurchased purchased only in part shall will be issued new Securities Notes equal in principal amount to the unpurchased portion of the Securities Notes surrendered, provided that the which unpurchased portion of such Securities must be equal to a minimum of $200,000 and 2,000 in principal amount or an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. thereof The Company shall will comply with the requirements of Section 14(e) of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws or and regulations are applicable in connection with the repurchase of Securities pursuant to the Notes as a result of a Change of Control OfferControl. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securitiesthis Section 4.15, the Company shall will comply with the applicable securities laws and regulations and shall will not be deemed to have breached the Company’s its obligations described in the Indenture and the Securities under this Section 4.15 by virtue thereof. of such compliance.
(b) On the Change of Control Payment Date, the Company shallwill, to the extent permitted by lawlawful:
(1) accept for payment all Securities Notes or portions thereof of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities Notes or portions thereof so of Notes properly tendered; and
(3) deliver, deliver or cause to be delivered, delivered to the Trustee for cancellation the Securities so Notes properly accepted together with an Officer’s Officers’ Certificate to stating the Trustee stating that such Securities aggregate principal amount of Notes or portions thereof have been tendered to and of Notes being purchased by the Company.
(c) The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any. The Company shall will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(d) Notwithstanding anything to the contrary in this Section 4.15, the Company will not be required to make a Change of Control Offer following upon a Change of Control Event if (1) a third party (including an affiliate of the Company) makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company this Section 4.15 and purchases all Securities validly Notes properly tendered and not withdrawn under such the Change of Control Offer, or (2) notice of redemption has been given pursuant to Section 3.07 hereof unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control EventControl, conditional conditioned upon the consummation of such Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of Control at the outstanding common shares of time the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the IndentureOffer is made.
Appears in 1 contract
Samples: Indenture (FirstCash Holdings, Inc.)
Repurchase at the Option of Holders. If a Change of Control Event occursIn the event that, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveSection 1015, the Company shall make be required to commence an offer to all Holders to purchase all or a portion of their respective Securities (a “Repurchase Offer”), it shall follow the Securities pursuant procedures specified in such Section and, to the offer described below extent not inconsistent therewith, the procedures specified below. Xxx Xxxxxxxxxx Offer shall remain open for a period of no less than 30 days and no more than 60 days following its commencement, except to the extent that a longer period is required by applicable law (the “Change Offer Period”). No later than three Business Days after the termination of Control Offer”) at a price in cash the Offer Period (the “Change of Control PaymentPurchase Date”) equal to 101.0% of the aggregate principal amount of the Securities, together with accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the Company shall send notice purchase the principal amount of Securities required to be purchased pursuant to Section 1015 hereof (the “Offer Amount”) or, if less than the Offer Amount has been tendered, all Securities tendered in response to the Repurchase Offer. Payment for any Securities so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Security is registered at the close of business on such Change record date, and no additional interest shall be payable to Holders who tender Securities pursuant to the Repurchase Offer. Upon the commencement of Control Offer a Repurchase Offer, the Company shall send, by first-first class mail, a notice to each of the Holders, with a copy to the Trustee, the Paying Agent . The notice shall contain all instructions and the Registrar, materials necessary to each Holder of the enable such Holders to tender Securities pursuant to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Repurchase Offer. The Repurchase Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase datemade to all Holders. The notice, which shall be no earlier than 30 days nor later than 60 days from govern the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment terms of the Change of Control PaymentRepurchase Offer, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by lawstate:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K below, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the then Outstanding Securities under the Indenture.
Appears in 1 contract
Samples: Indenture (AMC Networks Inc.)
Repurchase at the Option of Holders. If (a) Upon the occurrence of a Change of Control Event occurs, unless the Company shall have previously or concurrently mailed a redemption notice with respect to all the then Outstanding Securities pursuant to Clause A and Clause B aboveControl, the Company shall Issuer will make an offer to purchase all of the Securities pursuant to the offer described below (the a “Change of Control Offer”) to each Holder to repurchase all or any part (equal to €100,000 or integral multiples of €1,000 in excess thereof) of that Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased, plus accrued and unpaid interest and Additional Amounts, if any, on the Notes repurchased to the date of purchase (the “Change of Control Payment”) equal to 101.0% of the aggregate principal amount of the Securities, together with accrued and unpaid interest, if any, to the date of purchase), subject to the right rights of Holders of record of the Securities on the relevant record date to receive interest due on the relevant interest payment date. In connection with any Change of Control Event (but not later than Within 30 days following any Change of Control Event)Control, the Company shall send Issuer will mail a notice of such Change of Control Offer by first-class mail, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of setting forth the Securities to the address of such Holder appearing in the security register, or otherwise in accordance with Applicable Procedures of the Depositary, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Clause D and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to procedures governing the Change of Control Offer shall cease to accrue interest on as required by the Change of Control Payment Date;Indenture.
(5b) Any Net Proceeds from Asset Sales that Holders shall be entitled to withdraw their tendered Securities are not applied or invested as provided and their election to require within the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date a facsimile or electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $200,000 and an integral multiple of $1,000 in principal amount in excess thereof;
(7) if such notice is mailed prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant described hereunder, that a Holder must follow to tender its Securities. The Company shall comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof. On the Change of Control Payment Date, the Company shall, to the extent permitted by law:
(1) accept for payment all Securities or portions thereof properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Securities or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Securities so accepted together with an Officer’s Certificate to the Trustee stating that such Securities or portions thereof have been tendered to and purchased by the Company. The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements time period set forth in the Indenture and will constitute “Excess Proceeds.” When the Securities applicable to a Change aggregate amount of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary hereinExcess Proceeds exceeds $25.0 million, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. Except as set forth in Clause K belowwithin ten Business Days thereof, the provisions in the Indenture Issuer will make an Asset Sale Offer to all Holders of Notes and the Securities relative to the Company’s obligation to may make an offer to repurchase the Securities as a result all holders of a Change of Control Event may be waived or modified at any time other Indebtedness that is pari passu with the written consent of Notes or any Guarantee to purchase, prepay or redeem the Holders of a majority in maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the then Outstanding Securities under Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest and Additional Amounts, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Issuer and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into (or to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds or if the aggregate amount of Notes tendered pursuant to a Notes Offer exceeds the amount of the Net Proceeds so applied, the Issuer will select the Notes and such other pari passu Indebtedness, if applicable, to be purchased on a pro rata basis (or in the manner described in Section 3.02 of the Indenture), based on the amounts tendered or required to be prepaid or redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
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Samples: Indenture (Twist Beauty S.a r.l. & Partners S.C.A.)
