Repurchase of Notes at Option of the Holder Upon a Fundamental Change. (a) If a Fundamental Change occurs prior to the Maturity Date, each Holder of a Note shall have the right, at the option of the Holder, to require the Company to repurchase all or any of such Holder’s Notes at the Fundamental Change Repurchase Price, on the date specified by the Company that is not less than 20 days and not more than 35 days after the date of the Fundamental Change Company Notice pursuant to Section 16.01(b) (the “Fundamental Change Repurchase Date”). If the Fundamental Change Repurchase Date is after a Regular Record Date and on or prior to the corresponding Interest Payment Date, the Company shall pay accrued and unpaid interest to the Holder of a Note of record at the close of business on such Regular Record Date and the Fundamental Change Repurchase Price shall be 100% of the principal amount of the Notes to be repurchased. A Holder may require the Company to repurchase fewer than all of such Holder’s Notes only if (i) the principal amount of Notes to be repurchased is an integral multiple of $1,000 and (ii) the portion of such Holder’s Notes not to be repurchased is in a minimum principal amount of $2,000. (b) On or before the 15th day after the Fundamental Change Effective Date, the Company, or, at the request of the Company, the Trustee, shall mail a written notice by first-class mail of the occurrence of the Fundamental Change, and of the repurchase right arising therefrom, to the Trustee, Paying Agent and to each Holder at the address shown in the Note Register of the Note Registrar (and to beneficial owners as required by applicable law) (the “Fundamental Change Company Notice”). Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information that is required in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish information on a website of the Company or through such other public medium the Company may use at that time. The Fundamental Change Company Notice shall set forth the Holder’s right to require the Company to purchase the Notes and specify: (i) the events causing such Fundamental Change; (ii) the date of such Fundamental Change; (iii) the last date by which the Fundamental Repurchase Notice must be delivered to elect the repurchase option pursuant to this Section 16.01; (iv) the Fundamental Change Repurchase Price; (v) the Fundamental Change Repurchase Date; (vi) the name and address of each Paying Agent and Conversion Agent, if applicable; (vii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and (viii) the procedures that the Holder must follow to require the Company to repurchase its Notes under this Section 16.01. At the Company’s written request, the Trustee shall give such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided that, unless otherwise agreed by the Trustee, the Company makes such request at least five Business Days prior to the date by which such Fundamental Change Company Notice must be given to the Holders in accordance with this Section 16.01; provided, further, that the text of such Fundamental Change Company Notice shall be prepared by the Company. If any of the Notes is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the Applicable Procedures relating to the purchase of Global Notes. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder’s right to exercise its right to cause the Company to repurchase such Holder’s Notes pursuant to this Section 16.01.
Appears in 2 contracts
Samples: Indenture (Greenbrier Companies Inc), Indenture (Digital River Inc /De)
Repurchase of Notes at Option of the Holder Upon a Fundamental Change. (a) If a Fundamental Change occurs prior occurs, Outstanding Notes shall be repurchased by the Company in whole or in part (equal to the Maturity Date, each Holder of a Note shall have the right$1,000 or an integral multiple thereof), at the option of the HolderHolder thereof, in U.S. legal tender (“cash”) at 100% of the principal amount to require be repurchased plus any accrued and unpaid interest, thereon up to, but not including, such Fundamental Change Repurchase Date (the Company to repurchase all or any of such Holder’s Notes at the “Fundamental Change Repurchase Price, on the ”). The Fundamental Change Repurchase Date shall be a date specified by the Company that is not less no earlier than 20 days Business Days and not more no later than 35 days 30 Business Days after the date of the Fundamental Change Notice delivered by the Company Notice pursuant to Section 16.01(b) (the “Fundamental Change Repurchase Date”). If the Fundamental Change Repurchase Date is on a date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date, the Company shall will pay accrued and unpaid the related interest to the Holder of a Note of record person to whom principal is payable. No Notes may be repurchased by the Company at the close option of business on such Regular Record Date Holders upon a Fundamental Change if there has occurred and is continuing an Event of Default with respect to the Notes, other than a default in payment of the Fundamental Change Repurchase Price shall be 100% of with respect to the principal amount of Notes. Notwithstanding the Notes foregoing, a Holder will not have the right to be repurchased. A Holder may require the Company to repurchase fewer its Notes upon a Fundamental Change described in clause (iii) of the definition of “Fundamental Change” if more than all 90% (excluding cash payments for fractional shares and cash payments pursuant to dissenters’ appraisal rights) of such Holder’s the consideration in the transaction or transactions consists of Listed Common Equity immediately following the relevant transaction or transactions, and, as a result of the transaction or transactions, the Notes only if become convertible into that Listed Common Equity (iincluding any rights attached thereto). If the Company desires the Trustee to give the Fundamental Change Notice required by Section 4.2(b), at least three Business Days before the Fundamental Change Notice Date, the Company shall deliver an Officers’ Certificate to the Trustee specifying the information required by Section 4.2(b) the principal amount of Notes to be repurchased is an integral multiple of $1,000 and (ii) the portion of such Holder’s Notes not to be repurchased is in a minimum principal amount of $2,000.
(b) On or before the 15th day Within 15 calendar days after the occurrence of a Fundamental Change Effective DateChange, the Company, orCompany (or the Trustee, at the request of the Company, the Trustee, ) shall mail a written notice of the Fundamental Change (the “Fundamental Change Notice”) by first-class mail of the occurrence of the Fundamental Change, and of the repurchase right arising therefrom, to the Trustee, Paying Agent Trustee and to each Holder at (the address shown in the Note Register date of the Note Registrar (and to beneficial owners as required by applicable law) (such mailing, the “Fundamental Change Company NoticeNotice Date”). Simultaneously with providing such Fundamental Change Company Noticenotice, the Company shall will issue a press release and publish a notice containing the information that is required in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish information on a website of the Company or through such other public medium the Company may use at that timeits website. The Fundamental Change Company Notice shall set forth include a form of Fundamental Change Repurchase Notice to be completed by the Holder’s right to require the Company to purchase the Notes Holder and specifyshall state:
(i) briefly, the events causing nature of the Fundamental Change and the date of such Fundamental Change;
(ii) the date of such by which the Fundamental ChangeChange Repurchase Notice pursuant to Section 4.2(c) must be given;
(iii) the last date by which the Fundamental Change Repurchase Notice must be delivered to elect the repurchase option pursuant to this Section 16.01Date;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Datename and address of the Paying Agent and the Conversion Agent;
(vi) the name Conversion Rate and address of each Paying Agent and Conversion Agent, if applicableany adjustments thereto;
(vii) that the Notes with respect as to which a Fundamental Change Repurchase Notice has been delivered by a Holder given may be converted if they are otherwise convertible pursuant to Article V hereof only if the Holder withdraws the Fundamental Change Repurchase Notice has been withdrawn in accordance with the terms of this Indenture; and;
(viii) that the Notes must be surrendered to the Paying Agent to collect payment;
(ix) briefly, the procedures that the Holder must follow to require the Company to repurchase its Notes exercise rights under this Section 16.014.2(b);
(x) the procedures for withdrawing a Fundamental Change Repurchase Notice;
(xi) that, unless the Company defaults in making payment of such Fundamental Change Repurchase Price, interest, if any, on Notes surrendered for repurchase by the Company will cease to accrue on and after the Fundamental Change Repurchase Date; and
(xii) the CUSIP and ISIN number(s), if any, of the Notes. At the Company’s written request, the Trustee shall give such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; , provided that, unless otherwise agreed by the Trustee, that the Company makes such request at least five three Business Days prior to the date by which such Fundamental Change Company Notice must be given to the Holders in accordance with this Section 16.014.2(b); providedprovided further that, furtherin all cases, that the text of such Fundamental Change Company Notice shall be prepared by the Company.
(c) A Holder may exercise its rights specified in Section 4.2(a) upon delivery of a written notice of repurchase (a “Fundamental Change Repurchase Notice”) to the Paying Agent at any time on or prior to the close of business on the second Business Day prior to Fundamental Change Repurchase Date, stating:
(i) if the Notes are Certificated Securities, the certificate number of the Note which the Holder will deliver to be repurchased (or, if the Notes are not Certificated Securities, all information required to comply with applicable DTC procedures);
(ii) the principal amount of the Note, or portion thereof, which the Holder will deliver to be repurchased, which portion must be $1,000 or an integral multiple thereof; and
(iii) that such Note shall be repurchased pursuant to the terms and conditions specified in the applicable provisions of such Note and this Indenture. The delivery of such Note to the Paying Agent with the Fundamental Change Repurchase Notice (together with all necessary endorsements and compliance by the Holder with all DTC procedures) at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided, however, that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 4.2 only if the Note so delivered to the Paying Agent shall conform in all material respects to the description thereof set forth in the related Fundamental Change Repurchase Notice. The Company shall repurchase from the Holder thereof, pursuant to this Section 4.2, a portion of a Note if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of such portion of such Note. Any repurchase by the Company contemplated pursuant to the provisions of this Section 4.2 shall be consummated by the delivery of the consideration to be received by the Holder on the Business Day following the later of the Fundamental Change Repurchase Date or the satisfaction of the foregoing conditions to such repurchase to be fulfilled by the Holder hereunder. If any the Paying Agent holds money sufficient to pay the Fundamental Change Repurchase Price of the Notes is in the form of a Global Note, then the Company shall modify such notice which Holders have elected to the extent necessary to accord with the Applicable Procedures relating to the purchase of Global Notes. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder’s right to exercise its right to cause require the Company to repurchase on such Holder’s Business Day in accordance with the terms of this Indenture, then, from and including the Fundamental Change Repurchase Date, those Notes shall cease to be Outstanding and interest on the Notes shall cease to accrue and all other rights of the Holders shall terminate, other than the right to receive the Fundamental Change Repurchase Price upon satisfaction of the foregoing conditions.
(d) The Company shall deposit cash, at the time and in the manner as provided in Section 4.4, sufficient to pay the aggregate Fundamental Change Repurchase Price of all Notes to be repurchased pursuant to this Section 16.014.2.
Appears in 2 contracts
Samples: Supplemental Indenture (Great Atlantic & Pacific Tea Co Inc), Second Supplemental Indenture (Great Atlantic & Pacific Tea Co Inc)
Repurchase of Notes at Option of the Holder Upon a Fundamental Change. (a) If a Fundamental Change occurs prior to the Maturity Date, each Holder of a Note shall have the right, at the option of the Holder, to require the Company to repurchase all or any portion of the Notes of such Holder’s Notes Holder equal to $1,000 principal amount (or an integral multiple thereof) at the Fundamental Change Repurchase Purchase Price, on the date specified by the Company that is not less than 20 days and not more than 35 days after the date of the Fundamental Change Company Notice pursuant to Section 16.01(b15.01(b) (the “Fundamental Change Repurchase Purchase Date”). If the Fundamental Change Repurchase Purchase Date is after a Regular Record Date and on or prior to the corresponding Interest Payment Date, the Company shall pay accrued and unpaid interest to the Holder of a Note of record at the close of business on such Regular Record Date and the Fundamental Change Repurchase Price shall be 100% of the principal amount of the Notes Date, subject to be repurchased. A Holder may require the Company to repurchase fewer than all of such Holder’s Notes only if (i) the principal amount of Notes to be repurchased is an integral multiple of $1,000 and (ii) the portion of such Holder’s Notes not to be repurchased is in a minimum principal amount of $2,000Applicable Procedures.
(b) On or before the 15th tenth day after the Fundamental Change Effective Date, the Company, or, at the request of the Company, the Trustee, shall mail a written notice by first-class mail of the occurrence of the Fundamental Change, and of the repurchase right arising therefrom, to the Trustee, Paying Agent and to each Holder at the address shown in the Note Register of the Note Registrar (and to beneficial owners as required by applicable law) (the “Fundamental Change Company Notice”). Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information that is required in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish information on a website of the Company or through such other public medium the Company may use at that time. The Fundamental Change Company Notice shall set forth the Holder’s right to require the Company to purchase the Notes and specify:
(i) the events causing such Fundamental Change;
(ii) the date of such Fundamental Change;
(iii) the last date by which the Fundamental Repurchase Notice must be delivered to elect the repurchase option pursuant to this Section 16.0115.01;
(iv) the Fundamental Change Repurchase Purchase Price;
(v) the Fundamental Change Repurchase Purchase Date;
(vi) the name and address of each Paying Agent and Conversion Agent, if applicable;
(vii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Purchase Notice in accordance with the terms of this Indenture; and
(viii) the procedures that the Holder must follow to require the Company to repurchase its Notes under this Section 16.0115.01. At the Company’s written request, the Trustee shall give such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided that, unless otherwise agreed by the Trustee, the Company makes such request at least five (5) Business Days prior to the date by which such Fundamental Change Company Notice must be given to the Holders in accordance with this Section 16.0115.01; provided, further, that the text of such Fundamental Change Company Notice shall be prepared by the Company. If any of the Notes is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the Applicable Procedures relating to the purchase of Global Notes. The Trustee shall not be obligated on behalf of the Company to publish a notice containing the information that is required in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish information on a website of the Company or through such other public medium the Company may use at that time. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder’s right to exercise its right to cause the Company to repurchase such Holder’s Notes pursuant to this Section 16.0115.01.
(c) A Holder may exercise its rights specified in this Section 15.01 upon delivery of (1) the Note to be repurchased, duly endorsed for transfer, together with (2) a written purchase notice and the form entitled “Fundamental Change Purchase Notice” on the reverse of the Note duly completed and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form onto the Paying Agent (in the case of Notes held in book-entry form, in accordance with DTC’s Applicable Procedures) of the exercise of such rights (a “Fundamental Change Purchase Notice”) to the Paying Agent at any time on or before the close of business on the Fundamental Change Purchase Date, subject to extension to comply with applicable law.
(i) The Fundamental Change Purchase Notice shall state: (A) the certificate number (if such Note is held in certificated form) of the Note which the Holder will deliver to be repurchased (or, if the Note is held in global form, any other items required to comply with the Applicable Procedures), (B) the portion of the principal amount of the Note which the Holder will deliver to be repurchased and (C) that such Note shall be repurchased as of the Fundamental Change Purchase Date pursuant to the terms and conditions specified in the Notes and in this Indenture.
(ii) The delivery of a Note for which a Fundamental Change Purchase Notice has been timely delivered to any Paying Agent, on or before the Business Day immediately preceding the Fundamental Change Purchase Date (together with all necessary endorsements) at the office of such Paying Agent shall be a condition to the receipt by the Holder of the Fundamental Change Purchase Price therefor (or, if the Note is held in global form, any items required to comply with the Applicable Procedures).
(iii) The Company shall only be obliged to purchase, pursuant to this Section 15.01, a portion of a Note if the principal amount of such portion is $1,000 or an integral multiple of $1,000 (provisions of this Indenture that apply to the purchase of all of a Note also apply to the purchase of such portion of such Note).
(iv) A Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice.
(v) Anything herein to the contrary notwithstanding, in the case of Global Notes, any Fundamental Change Purchase Notice may be delivered and such Notes may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time.
(vi) A Holder may withdraw any Fundamental Change Purchase Notice in whole or in part by written notice of withdrawal delivered to the Paying Agent or in accordance with DTC’s Applicable Procedures prior to the close of business on the Business Day prior to the Fundamental Change Purchase Date. Such notice of withdrawal shall state: (A) the principal amount of the withdrawn Note , (B) the certificate number (if such Note is held in certificated form) of the withdrawn Note (or, if the Note is held in global form, any other items required to comply with the Applicable Procedures), and (C) the principal amount, if any, which remains subject to the Fundamental Change Purchase Notice.
(d) The Company shall deposit cash at the time and in the manner as provided in Section 15.03, sufficient (as determined by the Company) to pay the aggregate Fundamental Change Purchase Price of all Notes to be purchased pursuant to this Section 15.01.
Appears in 2 contracts
Samples: Indenture (Mannkind Corp), Indenture (Mannkind Corp)
Repurchase of Notes at Option of the Holder Upon a Fundamental Change. (a) If a Fundamental Change occurs prior to the Maturity Date, each Holder of a Note shall have the right, at the option of the Holder, to require the Company to repurchase all or any of such Holder’s Notes at the Fundamental Change Repurchase Price, on the date specified by the Company that is not less than 20 twenty (20) days and not more than 35 thirty-five (35) days after the date of the Fundamental Change Company Notice pursuant to Section 16.01(b) (the “Fundamental Change Repurchase Date”). If the Fundamental Change Repurchase Date is after a Regular Record Date and on or prior to the corresponding Interest Payment Date, the Company shall pay accrued and unpaid interest to the Holder of a Note of record at the close of business on such Regular Record Date and the Fundamental Change Repurchase Price shall be 100% of the principal amount of the Notes to be repurchased. A Holder may require the Company to repurchase fewer than all of such Holder’s Notes only if (i) the principal amount of Notes to be repurchased is an integral multiple of $1,000 and (ii) the portion of such Holder’s Notes not to be repurchased is in a minimum principal amount of $2,0001,000.
(ba) On or before the 15th day after the Fundamental Change Effective Date, the Company, or, at the written request of the Company, the Trustee, shall mail a written notice by first-class mail or electronically of the occurrence of the Fundamental Change, and of the repurchase right arising therefrom, to the Trustee, Paying Agent (if other than the Trustee) and to each Holder at the address shown in the Note Register of the Note Registrar (and to beneficial owners as required by applicable law) (the “Fundamental Change Company Notice”). Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information that is required in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish information on a website of the Company or through such other public medium the Company may use at that time. The Fundamental Change Company Notice shall set forth the Holder’s right to require the Company to purchase the Notes and specify:
(i) the events causing such Fundamental Change;
(ii) the date of such Fundamental Change;
(iii) the last date by which the Fundamental Repurchase Notice must be delivered to elect the repurchase option pursuant to this Section 16.01;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of each Paying Agent and Conversion Agent, if applicable;
(vii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(viii) the procedures that the Holder must follow to require the Company to repurchase its Notes under this Section 16.01. At the Company’s written request, the Trustee shall give such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided that, unless otherwise agreed by the Trustee, the Company makes such request at least five Business Days prior to the date by which such Fundamental Change Company Notice must be given to the Holders in accordance with this Section 16.01; provided, further, that the text of such Fundamental Change Company Notice shall be prepared by the Company. If any of the Notes is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the Applicable Procedures relating to the purchase of Global Notes. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder’s right to exercise its right to cause the Company to repurchase such Holder’s Notes pursuant to this Section 16.01.
(b) Repurchases of Notes under this Article 16 shall be made upon delivery to the Paying Agent by the Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in the Form of Fundamental Change Repurchase Notice in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date. Each Fundamental Change Repurchase Notice shall state:
Appears in 1 contract
Samples: First Supplemental Indenture (Greenbrier Companies Inc)
Repurchase of Notes at Option of the Holder Upon a Fundamental Change. (a) If a Fundamental Change occurs prior to the Maturity Date, each Holder of a Note shall have the right, at the option of the Holder, to require the Company to repurchase all or any portion of the Notes of such Holder’s Notes Holder equal to $1,000 principal amount (or an integral multiple thereof) at the Fundamental Change Repurchase Purchase Price, on the date specified by the Company that is not less than 20 days and not more than 35 days after the date of the Fundamental Change Company Notice pursuant to Section 16.01(b15.01(b) (the “Fundamental Change Repurchase Purchase Date”). If the Fundamental Change Repurchase Purchase Date is after a Regular Record Date and on or prior to the corresponding Interest Payment Date, the Company shall pay accrued and unpaid interest to the Holder of a Note of record at the close of business on such Regular Record Date and the Fundamental Change Repurchase Price shall be 100% of the principal amount of the Notes to be repurchased. A Holder may require the Company to repurchase fewer than all of such Holder’s Notes only if (i) the principal amount of Notes to be repurchased is an integral multiple of $1,000 and (ii) the portion of such Holder’s Notes not to be repurchased is in a minimum principal amount of $2,000Date.
(b) On or before the 15th tenth day after the Fundamental Change Effective Date, the Company, or, at the request of the Company, the Trustee, shall mail a written notice by first-class mail of the occurrence of the Fundamental Change, and of the repurchase right arising therefrom, to the Trustee, Paying Agent and to each Holder at the address shown in the Note Register of the Note Registrar (and to beneficial owners as required by applicable law) (the “Fundamental Change Company Notice”). Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information that is required in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish information on a website of the Company or through such other public medium the Company may use at that time. The Fundamental Change Company Notice shall set forth the Holder’s right to require the Company to purchase the Notes and specify:
(i) the events causing such Fundamental Change;
(ii) the date of such Fundamental Change;
(iii) the last date by which the Fundamental Repurchase Notice must be delivered to elect the repurchase option pursuant to this Section 16.0115.01;
(iv) the Fundamental Change Repurchase Purchase Price;
(v) the Fundamental Change Repurchase Purchase Date;
(vi) the name and address of each Paying Agent and Conversion Agent, if applicable;
(vii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Purchase Notice in accordance with the terms of this Indenture; and
(viii) the procedures that the Holder must follow to require the Company to repurchase its Notes under this Section 16.0115.01. At the Company’s written request, the Trustee shall give such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided that, unless otherwise agreed by the Trustee, the Company makes such request at least five (5) Business Days prior to the date by which such Fundamental Change Company Notice must be given to the Holders in accordance with this Section 16.0115.01; provided, further, that the text of such Fundamental Change Company Notice shall be prepared by the Company. If any of the Notes is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the Applicable Procedures relating to the purchase of Global Notes. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder’s right to exercise its right to cause the Company to repurchase such Holder’s Notes pursuant to this Section 16.0115.01.
(c) A Holder may exercise its rights specified in this Section 15.01 upon delivery of (1) the Note to be repurchased, duly endorsed for transfer, together with (2) a written purchase notice and the form entitled “Fundamental Change Purchase Notice” on the reverse of the Note duly completed and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form onto the Paying Agent (in the case of Notes held in book-entry form, in accordance with DTC’s Applicable Procedures) of the exercise of such rights (a “Fundamental Change Purchase Notice”) to the Paying Agent at any time on or before the close of business on the Fundamental Change Purchase Date, subject to extension to comply with applicable law.
(i) The Fundamental Change Purchase Notice shall state: (A) the certificate number (if such Note is held in certificated form) of the Note which the Holder will deliver to be repurchased (or, if the Note is held in global form, any other items required to comply with the Applicable Procedures), (B) the portion of the principal amount of the Note which the Holder will deliver to be repurchased and (C) that such Note shall be repurchased as of the Fundamental Change Purchase Date pursuant to the terms and conditions specified in the Notes and in this Indenture.
(ii) The delivery of a Note for which a Fundamental Change Purchase Notice has been timely delivered to any Paying Agent, on or before the Business Day immediately preceding the Fundamental Change Purchase Date (together with all necessary endorsements) at the office of such Paying Agent shall be a condition to the receipt by the Holder of the Fundamental Change Purchase Price therefor (or, if the Note is held in global form, any items required to comply with the Applicable Procedures).
(iii) The Company shall only be obliged to purchase, pursuant to this Section 15.01, a portion of a Note if the principal amount of such portion is $1,000 or an integral multiple of $1,000 (provisions of this Indenture that apply to the purchase of all of a Note also apply to the purchase of such portion of such Note).
(iv) A Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice.
(v) Anything herein to the contrary notwithstanding, in the case of Global Notes, any Fundamental Change Purchase Notice may be delivered and such Notes may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time.
(vi) A Holder may withdraw any Fundamental Change Purchase Notice in whole or in part by written notice of withdrawal delivered to the Paying Agent or in accordance with DTC’s Applicable Procedures prior to the close of business on the Business Day prior to the Fundamental Change Purchase Date. Such notice of withdrawal shall state: (A) the principal amount of the withdrawn Note , (B) the certificate number (if such Note is held in certificated form) of the withdrawn Note (or, if the Note is held in global form, any other items required to comply with the Applicable Procedures), and (C) the principal amount, if any, which remains subject to the Fundamental Change Purchase Notice.
(d) The Company shall deposit cash at the time and in the manner as provided in Section 15.03, sufficient to pay the aggregate Fundamental Change Purchase Price of all Notes to be purchased pursuant to this Section 15.01.
Appears in 1 contract
Samples: Indenture (Mannkind Corp)
Repurchase of Notes at Option of the Holder Upon a Fundamental Change. (a) If a Fundamental Change occurs prior to the Maturity Date, each Holder of a Note shall have the right, at the option of the Holder, to require the Company to repurchase all or any portion of the Notes of such Holder’s Notes Holder equal to $1,000 principal amount (or an integral multiple thereof) at the Fundamental Change Repurchase Purchase Price, on the date specified by the Company that is not less than 20 days and not more than 35 days after the date of the Fundamental Change Company Notice pursuant to Section 16.01(b15.01(b) (the “Fundamental Change Repurchase Purchase Date”). If the Fundamental Change Repurchase Purchase Date is after a Regular Record Date and on or prior to the corresponding Interest Payment Date, the Company shall pay accrued and unpaid interest to the Holder of a Note of record at the close of business on such Regular Record Date and the Fundamental Change Repurchase Price shall be 100% of the principal amount of the Notes Date, subject to be repurchased. A Holder may require the Company to repurchase fewer than all of such Holder’s Notes only if (i) the principal amount of Notes to be repurchased is an integral multiple of $1,000 and (ii) the portion of such Holder’s Notes not to be repurchased is in a minimum principal amount of $2,000Applicable Procedures.
(b) On or before the 15th tenth day after the Fundamental Change Effective Date, the Company, or, at the request of the Company, the Trustee, shall mail a written notice by first-class mail of the occurrence of the Fundamental Change, and of the repurchase right arising therefrom, to the Trustee, Paying Agent and to each Holder at the address shown in the Note Register of the Note Registrar (and to beneficial owners as required by applicable law) (the “Fundamental Change Company Notice”). Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information that is required in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish information on a website of the Company or through such other public medium the Company may use at that time. The Fundamental Change Company Notice shall set forth the Holder’s right to require the Company to purchase the Notes and specify:
(i) the events causing such Fundamental Change;
(ii) the date of such Fundamental Change;
(iii) the last date by which the Fundamental Repurchase Notice must be delivered to elect the repurchase option pursuant to this Section 16.0115.01;
(iv) the Fundamental Change Repurchase Purchase Price;
(v) the Fundamental Change Repurchase Purchase Date;
(vi) the name and address of each Paying Agent and Conversion Agent, if applicable;
(vii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Purchase Notice in accordance with the terms of this Indenture; and
(viii) the procedures that the Holder must follow to require the Company to repurchase its Notes under this Section 16.0115.01. At the Company’s written request, the Trustee shall give such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided that, unless otherwise agreed by the Trustee, the Company makes such request at least five (5) Business Days prior to the date by which such Fundamental Change Company Notice must be given to the Holders in accordance with this Section 16.0115.01; provided, further, that the text of such Fundamental Change Company Notice shall be prepared by the Company. If any of the Notes is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the Applicable Procedures relating to the purchase of Global Notes. The Trustee shall not be obligated on behalf of the Company to publish a notice containing the information that is required in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish information on a website of the Company or through such other public medium the Company may use at that time. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder’s right to exercise its right to cause the Company to repurchase such Holder’s Notes pursuant to this Section 16.0115.01.
(c) A Holder may exercise its rights specified in this Section 15.01 upon delivery of (1) the Note to be repurchased, duly endorsed for transfer, together with (2) a written purchase notice and the form entitled “Fundamental Change Purchase Notice” on the reverse of the Note duly completed and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form onto the Paying Agent (in the case of Notes held in book- entry form, in accordance with DTC’s Applicable Procedures) of the exercise of such rights (a “Fundamental Change Purchase Notice”) to the Paying Agent at any time on or before the close of business on the Fundamental Change Purchase Date, subject to extension to comply with applicable law.
(i) The Fundamental Change Purchase Notice shall state: (A) the certificate number (if such Note is held in certificated form) of the Note which the Holder will deliver to be repurchased (or, if the Note is held in global form, any other items required to comply with the Applicable Procedures), (B) the portion of the principal amount of the Note which the Holder will deliver to be repurchased and (C) that such Note shall be repurchased as of the Fundamental Change Purchase Date pursuant to the terms and conditions specified in the Notes and in this Indenture.
(ii) The delivery of a Note for which a Fundamental Change Purchase Notice has been timely delivered to any Paying Agent, on or before the Business Day immediately preceding the Fundamental Change Purchase Date (together with all necessary endorsements) at the office of such Paying Agent shall be a condition to the receipt by the Holder of the Fundamental Change Purchase Price therefor (or, if the Note is held in global form, any items required to comply with the Applicable Procedures).
(iii) The Company shall only be obliged to purchase, pursuant to this Section 15.01, a portion of a Note if the principal amount of such portion is $1,000 or an integral multiple of $1,000 (provisions of this Indenture that apply to the purchase of all of a Note also apply to the purchase of such portion of such Note).
(iv) A Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice.
(v) Anything herein to the contrary notwithstanding, in the case of Global Notes, any Fundamental Change Purchase Notice may be delivered and such Notes may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time.
(vi) A Holder may withdraw any Fundamental Change Purchase Notice in whole or in part by written notice of withdrawal delivered to the Paying Agent or in accordance with DTC’s Applicable Procedures prior to the close of business on the Business Day prior to the Fundamental Change Purchase Date. Such notice of withdrawal shall state: (A) the principal amount of the withdrawn Note , (B) the certificate number (if such Note is held in certificated form) of the withdrawn Note (or, if the Note is held in global form, any other items required to comply with the Applicable Procedures), and (C) the principal amount, if any, which remains subject to the Fundamental Change Purchase Notice.
(d) The Company shall deposit cash at the time and in the manner as provided in Section 15.03, sufficient (as determined by the Company) to pay the aggregate Fundamental Change Purchase Price of all Notes to be purchased pursuant to this Section 15.01.
Appears in 1 contract
Samples: Indenture (Mannkind Corp)
Repurchase of Notes at Option of the Holder Upon a Fundamental Change. (a) If a Fundamental Change occurs prior to the Maturity Dateoccurs, each Holder of a Note shall have the right, at the option of the such Holder’s option, to require the Company to repurchase for cash all or any of such Holder’s Notes not previously called for redemption by the Company, or any portion thereof that is equal to or an integral multiple of $1,000 principal amount, at a repurchase price equal to 100% of the principal amount of those Notes, plus accrued and unpaid Interest on those Notes (the “Fundamental Change Repurchase Price”) to, on but not including, the date specified by the Company that is not less than 20 30 days and not more than 35 days after following the date of the notice of a Fundamental Change mailed by the Company Notice pursuant to Section 16.01(b1110(b) (the “Fundamental Change Repurchase Date”). If , subject to satisfaction by or on behalf of the Holder of the requirements set forth in Section 1110(c); provided that if the Fundamental Change Repurchase Date is on a date that is after a Regular an Interest Record Date and on or prior to the corresponding Interest Payment Date, the Company shall pay accrued and unpaid interest to the Holder of a Note of record at the close of business on such Regular Record Date and the Fundamental Change Repurchase Price shall be 100% of the principal amount of the Notes to be repurchased, but shall not include accrued and unpaid Interest. A Holder may require Instead, the Company shall pay such Interest, on the Interest Payment Date to repurchase fewer than all the Holder of such Holder’s Notes only if (i) Record on the principal amount of Notes to corresponding Interest Record Date which may or not be repurchased the same person who is an integral multiple of $1,000 and (ii) paid the portion of such Holder’s Notes not to be repurchased is in a minimum principal amount of $2,000Fundamental Change Repurchase Price.
(b) On or before No later than 15 days after the 15th day after occurrence of a Fundamental Change, the Company shall mail a Company Notice of the Fundamental Change Effective Date, (substantially in the Company, or, at the request form of the Company, the Trustee, shall mail a written notice Exhibit C) by first-first class mail of the occurrence of the Fundamental Change, and of the repurchase right arising therefrom, to the Trustee, Paying Agent Trustee and to each Holder at the address shown in the Note Register of the Note Registrar (and to beneficial owners as if required by applicable law) (the “Fundamental Change Company Notice”). Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information that is required in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish information on a website of the Company or through such other public medium the Company may use at that time. The Fundamental Change Company Notice shall set forth include a form of Fundamental Change Repurchase Notice to be completed by the Holder’s right to require the Company to purchase the Notes Holder and specifyshall state:
(i) briefly, the events causing a Fundamental Change and the date of such Fundamental Change;
(ii) the date of such by which the Fundamental ChangeChange Repurchase Notice pursuant to this Section 1110 must be delivered to the Paying Agent in order for a Holder to exercise the repurchase rights;
(iii) the last date by which the Fundamental Change Repurchase Notice must be delivered to elect the repurchase option pursuant to this Section 16.01Date;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Datename and address of the Paying Agent and the Conversion Agent;
(vi) the name and address of each Paying Agent and Conversion Agent, if applicableRate;
(vii) that the Notes with respect as to which a Fundamental Change Repurchase Notice has been delivered by a Holder given may be converted if they are otherwise convertible pursuant to Article Seventeen hereof only if the Holder withdraws the Fundamental Change Repurchase Notice has been withdrawn in accordance with the terms of this Indenture; and;
(viii) that the Notes must be surrendered to the Paying Agent (by effecting book-entry transfer of the Notes or delivering certificated Notes, together with necessary endorsements, as the case may be) to collect payment;
(ix) that the Fundamental Change Repurchase Price for any Note as to which a Fundamental Change Repurchase Notice has been duly given and not withdrawn shall be paid promptly following the later of the Business Day immediately following the Fundamental Change Repurchase Date and the time of surrender of such Note as described in clause (viii);
(x) briefly, the procedures that the Holder must follow to require the Company to repurchase its Notes exercise rights under this Section 16.011110;
(xi) briefly, the conversion rights, if any, that exist on the Notes at the date of the Company Notice and as a result of such Fundamental Change;
(xii) the procedures for withdrawing a Fundamental Change Repurchase Notice;
(xiii) that, unless the Company defaults in making payment of such Fundamental Change Repurchase Price on Notes for which a Fundamental Change Repurchase Notice is submitted, Interest on such Notes shall cease to accrue from and after the Fundamental Change Repurchase Date; and
(xiv) the “CUSIP,” “ISIN” or other similar number(s), as the case may be, of the Notes. At the Company’s written request, the Trustee shall give such Fundamental Change Company Notice to each Holder in the Company’s name and at the Company’s expense; provided provided, however, that, unless otherwise agreed by the Trusteein all cases, the Company makes such request at least five Business Days prior to the date by which such Fundamental Change Company Notice must be given to the Holders in accordance with this Section 16.01; provided, further, that the text of such Fundamental Change Company Notice shall be prepared by the Company. If .
(c) A Holder may exercise its rights specified in this Section 1110 upon delivery of a written notice of repurchase (a “Fundamental Change Repurchase Notice”) to the Paying Agent at any time on or prior to the close of business on the Fundamental Change Repurchase Date, stating:
(i) if certificated Notes have been issued, the certificate number(s) of the Notes, which the Holder shall deliver to be repurchased (or, if certificated Notes have not been issued, the Fundamental Change Repurchase Notice shall comply with the appropriate Depositary procedures for book-entry transfer);
(ii) the portion of the principal amount of the Note, which the Holder shall deliver to be repurchased, which portion must be $1,000 or an integral multiple of $1,000; and
(iii) that such Note shall be repurchased pursuant to the applicable provisions of the Notes is and this Indenture. The delivery of such Note (together with all necessary endorsements) to the Paying Agent with the Fundamental Change Repurchase Notice at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided, however, that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 1110 only if the Note (together with all necessary endorsements) so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the form related Fundamental Change Repurchase Notice. The Company shall repurchase from the Holder thereof, pursuant to this Section 1110, a portion of a Global Note if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of such portion of such Note, then . Any repurchase by the Company shall modify such notice contemplated pursuant to the extent necessary to accord with provisions of this Section 1110 shall be consummated by the Applicable Procedures relating to the purchase of Global Notes. No failure delivery of the Company to give Fundamental Change Repurchase Price promptly following the foregoing notices later of the Business Day following the Fundamental Change Repurchase Date or defect therein the time of delivery of such Note (together with all necessary endorsements or notifications of book-entry transfer). Notwithstanding the foregoing, Holders shall limit any Holder’s not have the right to exercise its right to cause require the Company to repurchase the Notes upon a Change of Control described in clauses (a) and (d) of the definition thereof if (1) the last reported sale price of the Class A Common Stock for any five trading days within the 10 consecutive trading days ending immediately before the later of the Fundamental Change or the announcement thereof, equals or exceeds 105% of the conversion price per share of Class A Common Stock in effect on each of those trading days (this clause being referred to as the “105% exception”), or (2) more than 90% of the consideration (excluding cash payments for fractional shares or made in connection with the exercise of dissenters’ rights) in the transaction or transactions constituting such Holder’s Change of Control consists of shares of common stock traded or to be traded immediately following such Change of Control on a U.S. national securities exchange or the Nasdaq National Market, and, as a result of such transaction or transactions, the Notes pursuant become convertible into such common stock (excluding cash payments for fractional shares). Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 16.011110(c) shall have the right to withdraw such Fundamental Change Repurchase Notice by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 1111 at any time prior to the close of business on the Fundamental Change Repurchase Date. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written withdrawal thereof.
Appears in 1 contract
Samples: Second Supplemental Indenture (Sonic Automotive Inc)
Repurchase of Notes at Option of the Holder Upon a Fundamental Change. (a) If a Fundamental Change occurs prior to the Maturity Date, each Holder of a Note shall have the right, at the option of the Holder, to require the Company to repurchase all or any of such Holder’s Notes at the Fundamental Change Repurchase Price, on the date specified by the Company that is not less than 20 twenty (20) days and not more than 35 thirty-five (35) days after the date of the Fundamental Change Company Notice pursuant to Section 16.01(b) (the “Fundamental Change Repurchase Date”). If the Fundamental Change Repurchase Date is after a Regular Record Date and on or prior to the corresponding Interest Payment Date, the Company shall pay accrued and unpaid interest to the Holder of a Note of record at the close of business on such Regular Record Date and the Fundamental Change Repurchase Price shall be 100% of the principal amount of the Notes to be repurchased. A Holder may require the Company to repurchase fewer than all of such Holder’s Notes only if (i) the principal amount of Notes to be repurchased is an integral multiple of $1,000 and (ii) the portion of such Holder’s Notes not to be repurchased is in a minimum principal amount of $2,000.
(b) On or before the 15th day after the Fundamental Change Effective Date, the Company, or, at the request of the Company, the Trustee, shall mail a written notice by first-class mail or electronically of the occurrence of the Fundamental Change, and of the repurchase right arising therefrom, to the Trustee, Paying Agent and to each Holder at the address shown in the Note Register of the Note Registrar (and to beneficial owners as required by applicable law) (the “Fundamental Change Company Notice”). Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information that is required in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish information on a website of the Company or through such other public medium the Company may use at that time. The Fundamental Change Company Notice shall set forth the Holder’s right to require the Company to purchase the Notes and specify:
(i) the events causing such Fundamental Change;
(ii) the date of such Fundamental Change;
(iii) the last date by which the Fundamental Repurchase Notice must be delivered to elect the repurchase option pursuant to this Section 16.01;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of each Paying Agent and Conversion Agent, if applicable;
(vii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(viii) the procedures that the Holder must follow to require the Company to repurchase its Notes under this Section 16.01. At the Company’s written request, the Trustee shall give such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided that, unless otherwise agreed by the Trustee, the Company makes such request at least five Business Days prior to the date by which such Fundamental Change Company Notice must be given to the Holders in accordance with this Section 16.01; provided, further, that the text of such Fundamental Change Company Notice shall be prepared by the Company. If any of the Notes is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the Applicable Procedures relating to the purchase of Global Notes. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder’s right to exercise its right to cause the Company to repurchase such Holder’s Notes pursuant to this Section 16.01.
(c) Repurchases of Notes under this Article 16 shall be made upon delivery to the Paying Agent by the Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in the Form of Fundamental Change Repurchase Notice in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date. Each Fundamental Change Repurchase Notice shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple thereof (provided that any portion of a Holder’s Note not to be repurchased is in the minimum principal amount of $2,000); and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture provided, however, that if the Notes are Global Notes, the Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 16.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 16.02. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
Appears in 1 contract
Samples: Indenture (Greenbrier Companies Inc)
Repurchase of Notes at Option of the Holder Upon a Fundamental Change. (a) If a Fundamental Change occurs prior to the Maturity Dateoccurs, each Holder of a Note shall will have the right, at the option of the Holder, to require the Company to repurchase for Cash all or any portion of the Notes of such Holder’s Notes Holder equal to $1,000 principal amount (or an integral multiple of $1,000 in excess thereof) at the Fundamental Change Repurchase Price, on the date a Business Day specified by the Company that is not no more than 35, nor less than 20 days and not more than 35 days 20, Business Days after the date of the Fundamental Change Company Notice pursuant to Section 16.01(b3.01(b) (the “Fundamental Change Repurchase Date”). If However, if the Fundamental Change Repurchase Date is after a Regular Record Date and on or prior before the next Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such repurchase, to the corresponding receive, on or before such Interest Payment Date, the Company shall pay accrued and unpaid interest to the Holder of a Note of record at the close of business that would have accrued on such Regular Record Date Note to, but not including, such Interest Payment Date; and (ii) the Fundamental Change Repurchase Price shall be 100% of will not include accrued and unpaid interest on such Note to, but excluding, the principal amount of the Notes to be repurchased. A Holder may require the Company to repurchase fewer than all of such Holder’s Notes only if (i) the principal amount of Notes to be repurchased is an integral multiple of $1,000 and (ii) the portion of such Holder’s Notes not to be repurchased is in a minimum principal amount of $2,000Fundamental Change Repurchase Date.
(b) On or before the 15th 20th calendar day after the effective date of a Fundamental Change Effective DateChange, the Company, or, at the request of the Company, the Trustee, shall mail Company will deliver a written notice by first-class mail of the occurrence of the Fundamental Change, Change and of the resulting repurchase right arising therefrom, to the Trustee, the Paying Agent (if other than the Trustee) and to each Holder at the address shown in the Note Register of the Note Registrar (and to beneficial owners as required by applicable law) all Holders (the “Fundamental Change Company Notice”). Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information that is required in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish information on a website of the Company or through such other public medium the Company may use at that time. The Fundamental Change Company Notice shall set forth the Holder’s right to require the Company to purchase the Notes and specifystate:
(i) the events causing such Fundamental Change;
(ii) the date of such Fundamental Change;
(iii) the last date by which the Fundamental Repurchase Notice must be delivered to elect a Holder may exercise the repurchase option right pursuant to this Section 16.013.01;
(iv) the Fundamental Change Repurchase PriceDate;
(v) the Fundamental Change Repurchase DatePrice;
(vi) the Holder’s right to require the Company to purchase the Notes;
(vii) the name and address of each Paying Agent and Conversion Agent, if applicable;
(viiviii) the then effective Conversion Rate and any adjustments to the Conversion Rate resulting from such Fundamental Change (and the timing of any such adjustments);
(ix) whether a Make-Whole Premium shall be payable by the Company upon conversion;
(x) the procedures that the Holder must follow to exercise rights under this Section 3.01, including that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice such notice in accordance with the terms of this Indenture;
(xi) that, unless the Company fails to pay such Fundamental Change Repurchase Price, Notes covered by any Fundamental Change Repurchase Notice will cease to be outstanding and, subject to Section 3.01(a)(i), interest will cease to accrue on and after the Fundamental Change Repurchase Date; and
(viiixii) the procedures CUSIP number of the Notes and that no representation is made as to the Holder must follow correctness or accuracy of the CUSIP numbers listed in the notice or printed on the Notes to require the Company to repurchase its Notes under this Section 16.01be repurchased. At the Company’s written request, the Trustee shall give such Fundamental Change Company Notice to the Holders in the Company’s name and at the Company’s expense; provided that, unless otherwise agreed by the Trusteein all cases, the Company makes such request at least five three (3) Business Days prior to the date by which such Fundamental Change Company Notice must be given to the Holders in accordance with this Section 16.013.01; provided, further, that the text of such Fundamental Change Company Notice shall be prepared by the CompanyCompany and that the Trustee shall not be responsible for determining if a Fundamental Change has occurred. or for determining the occurrence or correctness of any of the events or information in such Fundamental Change Company Notice. If any of the Notes is in the form of a Global Note, then the Company shall will modify such notice to the extent necessary to accord with the Applicable Procedures relating to the purchase of Global Notes. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder’s right to exercise its right to cause the Company to repurchase such Holder’s Notes pursuant to this Section 16.013.01.
(c) To exercise its rights specified in Section 3.01(a), a Holder must, in the case of Certificated Notes, deliver a written notice (which shall be in substantially the form attached as Exhibit A under the heading “Fundamental Change Repurchase Notice”) or, in the case of Global Notes, deliver a notice in accordance with the Applicable Procedures of the exercise of such rights (a “Fundamental Change Repurchase Notice”) to the Paying Agent and the Trustee at any time prior to the Close of Business on the Business Day immediately before the related Fundamental Change Repurchase Date (or such later time as may be required by applicable law).
(1) The Fundamental Change Repurchase Notice shall state: (A) the certificate number (in the case of Certificated Notes) of the Note which the Holder will deliver to be repurchased (or, in the case of Global Notes, any other items required to comply with the Applicable Procedures), (B) the portion of the principal amount of the Note which the Holder will deliver to be repurchased and (C) that such Note shall be repurchased as of the Fundamental Change Repurchase Date pursuant to the terms and conditions specified in the Notes and in this Indenture. The Trustee and Paying Agent shall have no duty to verify the accuracy of any information contained in a Fundamental Change Repurchase Notice.
(2) Notes to be repurchased must be delivered to the Paying Agent (together with all necessary endorsements) at the office of such Paying Agent (in the case of Certificated Notes) or in compliance with the Applicable Procedures (in the case of Global Notes) for the Holder of those Notes to be entitled to receive the Fundamental Change Repurchase Price.
(3) The Company shall only be obliged to repurchase, pursuant to this Section 3.01, a portion of a Note if the principal amount of such portion is $1,000 or an integral multiple of $1,000 in excess thereof (provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of such portion of such Note).
(4) A Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice.
(d) A Holder that has delivered a Fundamental Change Repurchase Notice with respect to a Note may withdraw such notice by delivering a withdrawal notice to the Paying Agent and the Trustee (in the case of Certificated Notes) or in accordance with the Applicable Procedures (in the case of Global Notes) at any time before the Close of Business on the Business Day immediately before the Fundamental Change Repurchase Date. The withdrawal notice must specify the (i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, (ii) if Certificated Notes have been issued, the certificate number of the Note in respect of which such notice of withdrawal is being submitted, and (iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are Global Notes, the notice must comply with Applicable Procedures.
(e) The Company shall deposit Cash at the time and in the manner as provided in Section 3.03, sufficient to pay the aggregate Fundamental Change Repurchase Price of all Notes to be purchased pursuant to this Section 3.01.
(f) If a Holder has validly delivered a Fundamental Change Repurchase Notice with respect to a Note, then such Note may not be converted, except to the extent (i) such notice is withdrawn in accordance with the procedures described in this Section 3.01; or (ii) the Company fails to pay the related Fundamental Change Repurchase Price for such Note.
(g) Notwithstanding anything to the contrary above, the Company may not repurchase any of the Notes in connection with a Fundamental Change if the principal amount of the Notes has been accelerated (other than as a result of a default in the payment of the related Fundamental Change Repurchase Price and any related interest) and such acceleration has not been rescinded on or before the Fundamental Change Repurchase Date.
Appears in 1 contract
Repurchase of Notes at Option of the Holder Upon a Fundamental Change. (a) If a Fundamental Change occurs prior to the Maturity Date, each Holder of a Note shall have the right, at the option of the Holder, to require the Company to repurchase all or any of such Holder’s Notes at the Fundamental Change Repurchase Price, on the date specified by the Company that is not less than 20 twenty (20) days and not more than 35 thirty-five (35) days after the date of the Fundamental Change Company Notice pursuant to Section 16.01(b) (the “Fundamental Change Repurchase Date”). If the Fundamental Change Repurchase Date is after a Regular Record Date and on or prior to the corresponding Interest Payment Date, the Company shall pay accrued and unpaid interest to the Holder of a Note of record at the close of business on such Regular Record Date and the Fundamental Change Repurchase Price shall be 100% of the principal amount of the Notes to be repurchased. A Holder may require the Company to repurchase fewer than all of such Holder’s Notes only if (i) the principal amount of Notes to be repurchased is an integral multiple of $1,000 and (ii) the portion of such Holder’s Notes not to be repurchased is in a minimum principal amount of $2,0001,000.
(b) On or before the 15th day after the Fundamental Change Effective Date, the Company, or, at the written request of the Company, the Trustee, shall mail a written notice by first-class mail or electronically of the occurrence of the Fundamental Change, and of the repurchase right arising therefrom, to the Trustee, Paying Agent (if other than the Trustee) and to each Holder at the address shown in the Note Register of the Note Registrar (and to beneficial owners as required by applicable law) (the “Fundamental Change Company Notice”). Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information that is required in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish information on a website of the Company or through such other public medium the Company may use at that time. The Fundamental Change Company Notice shall set forth the Holder’s right to require the Company to purchase the Notes and specify:
(i) the events causing such Fundamental Change;
(ii) the date of such Fundamental Change;
(iii) the last date by which the Fundamental Repurchase Notice must be delivered to elect the repurchase option pursuant to this Section 16.01;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of each Paying Agent and Conversion Agent, if applicable;
(vii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(viii) the procedures that the Holder must follow to require the Company to repurchase its Notes under this Section 16.01. At the Company’s written request, the Trustee shall give such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided that, unless otherwise agreed by the Trustee, the Company makes such request at least five Business Days prior to the date by which such Fundamental Change Company Notice must be given to the Holders in accordance with this Section 16.01; provided, further, that the text of such Fundamental Change Company Notice shall be prepared by the Company. If any of the Notes is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the Applicable Procedures relating to the purchase of Global Notes. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder’s right to exercise its right to cause the Company to repurchase such Holder’s Notes pursuant to this Section 16.01.
(c) Repurchases of Notes under this Article 16 shall be made upon delivery to the Paying Agent by the Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in the Form of Fundamental Change Repurchase Notice in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date. Each Fundamental Change Repurchase Notice shall state:
(i) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii) the portion of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple thereof (provided that any portion of a Holder’s Note not to be repurchased is in the minimum principal amount of $1,000); and
(iii) that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture provided, however, that if the Notes are Global Notes, the Repurchase Notice must comply with appropriate Depositary procedures. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 16.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 16.02. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
Appears in 1 contract
Samples: Indenture (Greenbrier Companies Inc)
Repurchase of Notes at Option of the Holder Upon a Fundamental Change. (a) If a Fundamental Change occurs prior to the Maturity Date, each Holder of a Note shall have the right, at the option of the Holder, to require the Company to repurchase all or any portion of the Notes of such Holder’s Notes Holder equal to $1,000 principal amount (or an integral multiple thereof) at the Fundamental Change Repurchase Purchase Price, on the date specified by the Company that is not less than 20 days and not more than 35 days after the date of the Fundamental Change Company Notice pursuant to Section 16.01(b15.01(b) (the “Fundamental Change Repurchase Purchase Date”). If the Fundamental Change Repurchase Date is after a Regular Record Date and on or prior to the corresponding Interest Payment Date, the Company shall pay accrued and unpaid interest to the Holder of a Note of record at the close of business on such Regular Record Date and the Fundamental Change Repurchase Price shall be 100% of the principal amount of the Notes to be repurchased. A Holder may require the Company to repurchase fewer than all of such Holder’s Notes only if (i) the principal amount of Notes to be repurchased is an integral multiple of $1,000 and (ii) the portion of such Holder’s Notes not to be repurchased is in a minimum principal amount of $2,000.
(b) On or before the 15th tenth day after the Fundamental Change Effective Date, the Company, or, at the request of the Company, the Trustee, shall mail a written notice by first-class mail of the occurrence of the Fundamental Change, and of the repurchase right arising therefrom, to the Trustee, Paying Agent and to each Holder at the address shown in the Note Register of the Note Registrar (and to beneficial owners as required by applicable law) (the “Fundamental Change Company Notice”). Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information that is required in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish information on a website of the Company or through such other public medium the Company may use at that time. The Fundamental Change Company Notice shall set forth the Holder’s right to require the Company to purchase the Notes and specify:
(i) the events causing such Fundamental Change;
(ii) the date of such Fundamental Change;
(iii) the last date by which the Fundamental Repurchase Notice must be delivered to elect the repurchase option pursuant to this Section 16.0115.01;
(iv) the Fundamental Change Repurchase Purchase Price;
(v) the Fundamental Change Repurchase Purchase Date;
(vi) the name and address of each Paying Agent and Conversion Agent, if applicable;
(vii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Purchase Notice in accordance with the terms of this Indenture; and
(viii) the procedures that the Holder must follow to require the Company to repurchase its Notes under this Section 16.0115.01. At the Company’s written request, the Trustee shall give such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided that, unless otherwise agreed by the Trustee, the Company makes such request at least five (5) Business Days prior to the date by which such Fundamental Change Company Notice must be given to the Holders in accordance with this Section 16.0115.01; provided, further, that the text of such Fundamental Change Company Notice shall be prepared by the Company. If any of the Notes is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the Applicable Procedures relating to the purchase of Global Notes. The Trustee shall not be obligated on behalf of the Company to publish a notice containing the information that is required in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish information on a website of the Company or through such other public medium the Company may use at that time. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder’s right to exercise its right to cause the Company to repurchase such Holder’s Notes pursuant to this Section 16.0115.01.
(c) A Holder may exercise its rights specified in this Section 15.01 upon delivery of (1) the Note to be repurchased, duly endorsed for transfer, together with (2) a written purchase notice and the form entitled “Fundamental Change Purchase Notice” on the reverse of the Note duly completed and which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form onto the Paying Agent (in the case of Notes held in book-entry form, in accordance with DTC’s Applicable Procedures) of the exercise of such rights (a “Fundamental Change Purchase Notice”) to the Paying Agent at any time on or before the close of business on the Fundamental Change Purchase Date, subject to extension to comply with applicable law.
(i) The Fundamental Change Purchase Notice shall state: (A) the certificate number (if such Note is held in certificated form) of the Note which the Holder will deliver to be repurchased (or, if the Note is held in global form, any other items required to comply with the Applicable Procedures), (B) the portion of the principal amount of the Note which the Holder will deliver to be repurchased and (C) that such Note shall be repurchased as of the Fundamental Change Purchase Date pursuant to the terms and conditions specified in the Notes and in this Indenture.
(ii) The delivery of a Note for which a Fundamental Change Purchase Notice has been timely delivered to any Paying Agent, on or before the Business Day immediately preceding the Fundamental Change Purchase Date (together with all necessary endorsements) at the office of such Paying Agent shall be a condition to the receipt by the Holder of the Fundamental Change Purchase Price therefor (or, if the Note is held in global form, any items required to comply with the Applicable Procedures).
(iii) The Company shall only be obliged to purchase, pursuant to this Section 15.01, a portion of a Note if the principal amount of such portion is $1,000 or an integral multiple of $1,000 (provisions of this Indenture that apply to the purchase of all of a Note also apply to the purchase of such portion of such Note).
(iv) A Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice.
(v) Anything herein to the contrary notwithstanding, in the case of Global Notes, any Fundamental Change Purchase Notice may be delivered and such Notes may be surrendered or delivered for purchase in accordance with the Applicable Procedures as in effect from time to time.
(vi) A Holder may withdraw any Fundamental Change Purchase Notice in whole or in part by written notice of withdrawal delivered to the Paying Agent or in accordance with DTC’s Applicable Procedures prior to the close of business on the Business Day prior to the Fundamental Change Purchase Date. Such notice of withdrawal shall state: (A) the principal amount of the withdrawn Note , (B) the certificate number (if such Note is held in certificated form) of the withdrawn Note (or, if the Note is held in global form, any other items required to comply with the Applicable Procedures), and (C) the principal amount, if any, which remains subject to the Fundamental Change Purchase Notice.
(d) The Company shall deposit cash at the time and in the manner as provided in Section 15.03, sufficient (as determined by the Company) to pay the aggregate Fundamental Change Purchase Price of all Notes to be purchased pursuant to this Section 15.01.
Appears in 1 contract
Samples: Indenture (Mannkind Corp)
Repurchase of Notes at Option of the Holder Upon a Fundamental Change. (a) If a Fundamental Change occurs prior to the Maturity Dateoccurs, each Holder of a Note holder shall have the right, at the option of the Holdersuch holder’s option, to require the Company to repurchase all or any a portion of the Notes held by such Holder’s Notes holder at a price in cash (the “Fundamental Change Repurchase Price”) equal to 100% of the aggregate principal amount of such Notes, on together with accrued but unpaid interest (including Liquidated Damages, if any, and Additional Interest, if any) thereon, up to but not including the date specified by the Company that is not less than 20 days and not more than 35 days after the date of the Fundamental Change Company Notice pursuant to Section 16.01(b) (the “Fundamental Change Repurchase Date”) specified by the Company that is not more than 30 days after the date the Fundamental Change Repurchase Notice (as defined below) is given; provided that if such 30th day is not a Business Day, the Fundamental Change Repurchase Date shall be the next succeeding Business Day; provided, further that, in accordance with Section 2.03(b). If , if the Fundamental Change Repurchase Date is after 5:00 p.m., New York City time, on a Regular Record Date and on or prior to 9:00 a.m., New York City time, on the corresponding related Interest Payment Date, the Company shall pay accrued and but unpaid interest (including Liquidated Damages, if any, and Additional Interest, if any) will be payable to the Holder of a Note of record holders in whose names the Notes are registered at 5:00 p.m., New York City time, on the close of business on such Regular relevant Record Date and instead of the holders surrendering Notes for repurchase on the Fundamental Change Repurchase Price shall be 100% of the principal amount of the Notes to be repurchased. A Holder may require the Company to repurchase fewer than all of such Holder’s Notes only if (i) the principal amount of Notes to be repurchased is an integral multiple of $1,000 and (ii) the portion of such Holder’s Notes not to be repurchased is in a minimum principal amount of $2,000Date.
(b) On or before the 15th day Within 30 days after the occurrence of a Fundamental Change Effective DateChange, the Company, or, at the request of the Company, the Trustee, Company shall (x) (i) mail a written notice by first-class mail of the occurrence of the Fundamental Change, and of Change (the repurchase right arising therefrom, to the Trustee, Paying Agent and “Company Fundamental Change Repurchase Notice”) to each Holder holder at the address shown of such holder as it appears in the Note Register of the Note Registrar (and to beneficial owners (as required by applicable law) or (ii) cause DTC to send the “Company Fundamental Change Repurchase Notice to its participants that own Notes and (y) issue a press release containing such notice and publish such Company Notice”). Simultaneously with providing such Fundamental Change Company Notice, the Repurchase Notice on its web site. The Company shall publish also deliver a notice containing the information that is required in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish information on a website copy of the Company or through Fundamental Change Repurchase Notice to the Trustee and the Paying Agent at such other public medium the Company may use at that timetime as it is mailed to holders. The Company Fundamental Change Company Repurchase Notice shall set forth include the Holder’s right form of a Fundamental Change Repurchase Notice (as defined in Section 3.05(c) below) to require be completed by the Company to purchase the Notes holder and specifyshall state:
(i) the events event(s) causing such Fundamental Change;
(ii) the date of such Fundamental Change;
(iii) the last time and date by which the Fundamental Change Repurchase Notice must be delivered to elect the repurchase option pursuant to this Section 16.013.05 must be given;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of each the Paying Agent and the Conversion Agent, if applicable;
(vii) the Conversion Rate and any adjustments thereto;
(viii) that the Notes with respect as to which a Fundamental Change Repurchase Notice has been delivered by a Holder given may be converted into Common Stock pursuant to this Indenture only if to the Holder withdraws extent that the Fundamental Change Repurchase Notice has been withdrawn in accordance with the terms of this Indenture; and;
(viiiix) the procedures that the Holder holder of Notes must follow to require the Company to repurchase its Notes exercise rights under this Section 16.013.05; and
(x) the procedures for withdrawing a Fundamental Change Repurchase Notice, including a form of notice of withdrawal (as specified in Section 3.06). At the Company’s written request, the Trustee which shall give such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided that, unless otherwise agreed by the Trustee, the Company makes such request be made at least five three Business Days prior to the date by which such the Company Fundamental Change Company Repurchase Notice must is to be given to the Holders holders in accordance with this Section 16.013.05, and at the Company’s expense, the Trustee shall give the Company Fundamental Change Repurchase Notice in the Company’s name; providedprovided that, furtherin all cases, that the text of such the Company Fundamental Change Company Repurchase Notice shall be prepared by the Company. If any of the Notes is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the Applicable Procedures relating applicable procedures of the Depositary that apply to the purchase repurchase of Global Notes. No failure .
(c) For a Note to be so repurchased at the option of the Company holder upon a Fundamental Change, the holder must deliver to give the foregoing notices Paying Agent prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date, (i) a written notice of repurchase (the “Fundamental Change Repurchase Notice”) in the form set forth on the reverse of the Note duly completed (if the Note is certificated) or defect therein stating the following: (A) if certificated, the certificate number of the Note which the holder will deliver to be repurchased or, if such Note is a Global Note, such information as may be required under applicable Depositary procedures, (B) the portion of the principal amount of the Note which the holder will deliver to be repurchased, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000 and (C) that such Note shall limit be repurchased as of the Fundamental Change Repurchase Date pursuant to the terms and conditions specified in the Note and in this Indenture; and (ii) such Notes duly endorsed for transfer (if the Note if certificated) or book-entry transfer of such Note (if such Note is represented by a Global Note). The delivery of such Note to the Paying Agent with, or at any Holder’s right time after delivery of, the Fundamental Change Repurchase Notice (together with all necessary endorsements) at the office of the Paying Agent shall be a condition to exercise its right to cause the Company to repurchase receipt by the holder of the Fundamental Change Repurchase Price therefore; provided, however, that such Holder’s Notes Fundamental Change Repurchase Price shall be so paid pursuant to this Section 16.013.05 only if the Notes so delivered to the Paying Agent shall conform in all respects to the description thereof in the Fundamental Change Repurchase Notice. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Note for repurchase shall be determined by the Company, whose determination shall be final and binding absent manifest error. The Company shall repurchase from the holder thereof, pursuant to this Section 3.05, a portion of a Note, if the principal amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the repurchase of all of a Note also apply to the repurchase of a portion of a Note. Any repurchase by the Company contemplated pursuant to the provisions of this Section 3.05 shall be consummated by the delivery by the Company to the Paying Agent of the Fundamental Change Repurchase Price, together with accrued but unpaid interest (including Liquidated Damages, if any, and Additional Interest, if any) thereon, up to but not including the Fundamental Change Repurchase Date, to be received by the holder promptly following the later of the Fundamental Change Repurchase Date and the time of delivery or book-entry transfer of the Note to the Paying Agent in accordance with this Section 3.05. Notwithstanding anything herein to the contrary, any holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 3.05(c) shall have the right to withdraw such Fundamental Change Repurchase Notice at any time prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent at the principal office of the Paying Agent in accordance with Section 3.06(b). The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written withdrawal thereof.
(d) If a holder has delivered a Fundamental Change Repurchase Notice with respect to any of such holder’s Notes, such holder may convert its Notes with respect to which the Fundamental Change Repurchase Notice was delivered only if such holder withdraws, in accordance with Section 3.06(b), its Fundamental Change Repurchase Notice with respect to the Notes such holder wishes to convert and converts such Notes before 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date.
Appears in 1 contract
Samples: Indenture (Macerich Co)
Repurchase of Notes at Option of the Holder Upon a Fundamental Change. (a) If a Fundamental Change occurs prior to the Maturity Dateat any time, each Holder of a Note shall have the right, at the option of the Holder, to require the Company to repurchase purchase for cash all or any of such Holder’s Notes at or any portion of the principal thereof that is equal to $1,000 principal amount (or an integral multiple thereof) on the date (the “Fundamental Change Repurchase Price, on the date Date”) specified by the Company that is not less than 20 calendar days and not nor more than 35 calendar days after the date of the Fundamental Change Company Notice pursuant Repurchase Right Notice, at a purchase price equal to Section 16.01(b) 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest, if any, to, but not including, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase DatePrice”). If the ; provided that if such Fundamental Change Repurchase Date is falls after a Regular Record Date and on or prior to the corresponding Interest Payment Date, then the Company shall pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to the Holder of a Note record as of record at the close of business on such the corresponding Regular Record Date and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of the Notes to be repurchased. A Holder may require the Company to repurchase fewer than all of such Holder’s Notes only if (i) the principal amount of Notes to be repurchased is an integral multiple of $1,000 and (ii) the portion of such Holder’s Notes not to be repurchased is in a minimum principal amount of $2,000.
(b) On or before the 15th 20th calendar day after (i) in the case of a Fundamental Change pursuant to clause (1) of the definition thereof, the date the Company becomes aware that a Fundamental Change has occurred or become effective or (ii) in the case of any other Fundamental Change, the date on which the Fundamental Change Effective Dateoccurs or becomes effective, the Company, or, at the request of the Company, the Trustee, Company shall mail a written notice by first-class mail of the occurrence of the Fundamental Change, Change and of the repurchase right arising therefromresulting purchase right, to the Trustee, Paying Agent and to each Holder at the address shown in the Note Register of the Note Registrar (and to beneficial owners as required by applicable law) if any (the “Fundamental Change Company Repurchase Right Notice”). Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information that is required in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish information on a website of the Company or through such other public medium the Company may use at that time. The Fundamental Change Company Repurchase Right Notice shall set forth the Holder’s right to require the Company to purchase the Notes and specifystate, among other things:
(i1) the events causing such the Fundamental Change;
(ii2) the date of such the Fundamental Change;
(iii3) the last date by on which the Fundamental Repurchase Notice must be delivered to elect a Holder may exercise the repurchase option pursuant to this Section 16.01right;
(iv4) the Fundamental Change Repurchase Price;
(v5) the Fundamental Change Repurchase Date;
(vi6) the name and address of each the Paying Agent and the Conversion Agent, if applicable;
(vii7) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate, including any Additional ADSs;
(8) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this the Indenture; and
(viii9) the procedures that the Holder Holders must follow to require the Company to repurchase its Notes under this their Notes. Simultaneously with providing such Fundamental Change Repurchase Right Notice, the Company shall (i) publish a notice containing the information in Section 16.013.01(b) in a newspaper of general circulation in the City of New York or issue a press release and (ii) publish the information on the Company’s website or through such other public medium as the Company may use at that time. At the Company’s written request, the Trustee shall give such Fundamental Change Company Notice notice in the Company’s name and at the Company’s expense; provided provided, however, that, unless otherwise agreed by the Trusteein all cases, the Company makes such request at least five Business Days prior to the date by which such Fundamental Change Company Notice must be given to the Holders in accordance with this Section 16.01; provided, further, that the text of such Fundamental Change Company Repurchase Right Notice shall be prepared by the Company. If any of the Notes is in the form of In such a Global Notecase, then the Company shall modify deliver such notice to the extent necessary Trustee at least two Business Days prior to accord the date that such notice is required to be given to the Holders (unless a shorter notice period shall be agreed to by the Trustee), together with an Officer’s Certificate requesting that the Trustee give such notice. Such notice shall be delivered to the Trustee, to the Paying Agent (if other than the Trustee) and to each Holder at its address shown in the Register (and to the beneficial owner as required by applicable law) or, in the case of Global Notes, in accordance with the Applicable Procedures relating to the purchase of Global NotesProcedures. No failure of the Company to give the foregoing notices or and no defect therein shall limit any Holder’s right to exercise its right to cause the Company to repurchase such Holder’s purchase rights of the Holders or affect the validity of the proceedings for the purchase of the Notes pursuant to this Section 16.013.01.
(c) A Holder may exercise its rights specified in Section 3.01(a) upon delivery of the Notes to be repurchased, duly endorsed for transfer, together with a duly completed written repurchase notice (a “Fundamental Change Repurchase Notice”) in the form entitled “Form of Fundamental Change Repurchase Notice” set forth in Exhibit A hereto (which may be delivered by letter, overnight courier, hand delivery, facsimile transmission or in any other written form and, in the case of Global Notes, may be delivered electronically or by other means in accordance with the Applicable Procedures) to the Paying Agent at any time on or before the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date. The Fundamental Change Repurchase Notice shall state:
(1) if the Notes are Certificated Notes, the certificate number of the Note which the Holder will deliver to be repurchased;
(2) the portion of the principal amount of the Note which the Holder will deliver to be repurchased, which must be in $1,000 principal amount or an integral multiple of $1,000 in excess thereof; and
(3) that such Note shall be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture; provided, however, that if the Notes are Global Notes, such delivery (and the related Fundamental Change Repurchase Notice) must comply with all Applicable Procedures.
(d) Any Holder shall have the right to withdraw a Fundamental Change Repurchase Notice in whole or in part by a written notice of withdrawal delivered to the Paying Agent in accordance with this Section 3.01 at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date specifying:
(1) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, which portion must be $1,000 aggregate principal amount or an integral multiple thereof;
(2) if Certificated Notes have been issued, the certificate numbers of the Notes in respect of which such notice of withdrawal is being submitted; and
(3) the principal amount, if any, of such Note which remains subject to the Fundamental Change Repurchase Notice, which portion must be $1,000 aggregate principal amount or an integral multiple thereof; provided, however, that if the Notes are Global Notes, such notice must comply with all Applicable Procedures. The Paying Agent will promptly return to the respective Holders thereof any Notes with respect to which a Fundamental Change Repurchase Notice has been withdrawn in compliance with this First Supplemental Indenture.
(e) The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
Appears in 1 contract
Samples: First Supplemental Indenture (Vipshop Holdings LTD)
Repurchase of Notes at Option of the Holder Upon a Fundamental Change. (a) If a Fundamental Change occurs prior to the Maturity Date, each Holder of a Note shall have the right, at the option of the Holder, to require the Company to repurchase all or any of such Holder’s Notes at the Fundamental Change Repurchase Price, on the date specified by the Company that is not less than 20 days and not more than 35 days after the date of the Fundamental Change Company Notice pursuant to Section 16.01(b14.01(b) (the “Fundamental Change Repurchase Date”). If the Fundamental Change Repurchase Date is after a Regular Record Date and on or prior to the corresponding Interest Payment Date, the Company shall pay accrued and unpaid interest to the Holder of a Note of record at the close of business on such Regular Record Date and the Fundamental Change Repurchase Price shall be 100% of the principal amount of the Notes to be repurchased. A Holder may require the Company to repurchase fewer than all of such Holder’s Notes only if (i) the principal amount of Notes to be repurchased is an integral multiple of $1,000 and (ii) the portion of such Holder’s Notes not to be repurchased is in a minimum principal amount of $2,0001,000.
(b) On or before the 15th day after the Fundamental Change Effective Date, the Company, or, at the request of the Company, the Trustee, shall mail a written notice by first-class mail of the occurrence of the Fundamental Change, and of the repurchase right arising therefrom, to the Trustee, Paying Agent and to each Holder at the address shown in the Note Register of the Note Registrar (and to beneficial owners as required by applicable law) (the “Fundamental Change Company Notice”). Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information that is required in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish information on a website of the Company or through such other public medium the Company may use at that time. The Fundamental Change Company Notice shall set forth the Holder’s right to require the Company to purchase the Notes and specify:
(i) the events causing such Fundamental Change;
(ii) the date of such Fundamental Change;
(iii) the last date by which the Fundamental Repurchase Notice must be delivered to elect the repurchase option pursuant to this Section 16.0114.01;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of each Paying Agent and Conversion Exchange Agent, if applicable;
(vii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted exchanged only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(viii) the procedures that the Holder must follow to require the Company to repurchase its Notes under this Section 16.0114.01. At the Company’s written request, the Trustee shall give such Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided that, unless otherwise agreed by the Trustee, the Company makes such request at least five Business Days prior to the date by which such Fundamental Change Company Notice must be given to the Holders in accordance with this Section 16.0114.01; provided, further, that the text of such Fundamental Change Company Notice shall be prepared by the Company. If any of the Notes is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the Applicable Procedures relating to the purchase of Global Notes. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder’s right to exercise its right to cause the Company to repurchase such Holder’s Notes pursuant to this Section 16.0114.01.
(c) Repurchases of Notes under this Article 14 shall be made upon delivery to the Paying Agent by the Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the form set forth in the Form of Fundamental Change Repurchase Notice in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date. Each Fundamental Change Repurchase Notice shall state:
(A) in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
Appears in 1 contract
Samples: Indenture (Cenveo, Inc)
