Repurchase of Securities at Option of the Holder. Upon a ------------------------------------------------------- Change of Control. ----------------- (a) Upon the occurrence of a Change of Control, each Holder of the Securities shall have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of such Holder's Securities pursuant to the offer described below (the "Change of Control Offer") at an offer price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase (the "Change of Control Payment"). Within ten days following any Change of Control, the Company shall mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase the Securities on the date specified in such notice (the "Change of Control Payment Date"), which date shall be no earlier than the earliest date permitted under Rule 14e-1 under the Exchange Act ("Rule 14e-1") and no later than 60 days from the date such notice is mailed. The Company shall comply with the requirements of Rule 14e-1 and any other laws and/or regulations of the SEC to the extent such laws and regulations are applicable in connection with the repurchase of the Securities as a result of a Change of Control. To the extent that any provisions of the laws and/or regulations of the SEC conflict with any provision contained herein, the Company shall comply with the applicable SEC laws and regulations and will not be deemed to have breached its obligations hereunder. On the Change of Control Payment Date, the Company shall, to the extent lawful, (i) accept for payment all the Securities or portions thereof properly tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all the Securities or portions thereof so tendered and (iii) deliver or cause to be delivered to the Trustee the Securities so accepted together with an Officers' Certificate stating the aggregate principal amount of the Securities or portions thereof being purchased by the Company. The Paying Agent shall promptly mail to each Holder of the Securities so tendered the Change of Control Payment for such Securities, and the Trustee shall authenticate and mail (or cause to be transferred by book entry) to each Holder a new Security equal in principal amount to any unpurchased portion of the Securities surrendered, if any; provided that each such new Security will be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable following the Change of Control Payment Date. Notwithstanding the application of the provisions of Article V, the Change of Control provisions described in this Section 10.1 shall apply to the Securities. Except as described above with respect to a Change of Control, the Holders of the Securities may not require the Company to repurchase or redeem the Securities in the event of a takeover, recapitalization or similar transaction. The Company will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer and purchases all the Securities validly tendered and not withdrawn under such Change of Control Offer. If the Change of Control Payment Date is on or after an Interest Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Security is registered at the close of business on such Record Date, and such interest will not be payable to Holders who tender the Securities pursuant to the Change of Control Offer. (b) In the event that, pursuant to this Section 10.1, the Company shall be required to commence a Change of Control Offer, the Company shall follow the procedures set forth in this Section 10.1 as follows: (i) the Change of Control Offer shall commence within 10 Business Days following the occurrence of a Change of Control; (ii) the Change of Control Offer shall remain open for 20 Business Days following its commencement (the "Change of Control Offer Period"); (iii) upon the expiration of the Change of Control Offer Period, the Company promptly shall purchase all of the tendered Securities at the Change of Control Purchase Price; (iv) if the Change of Control is on or after an Interest Record Date and on or before the related Interest Payment Date, any accrued interest will be paid to the Person in whose name a Security is registered at the close of business on such record date, and no additional interest will be payable to Securityholders who tender Securities pursuant to the Change of Control Offer; (v) the Company shall provide the Trustee and the Paying Agent with written notice of the Change of Control Offer at least three Business Days before the commencement of any Change of Control Offer; and (vi) on or before the commencement of any Change of Control Offer, the Company or the Trustee (upon the request and at the expense of the Company) shall send, by first-class mail, a notice to each of the Securityholders, which (to the extent consistent with this Indenture) shall govern the terms of the Change of Control Offer and shall state: (A) that the Change of Control Offer is being made pursuant to this Section 10.1 and that all Securities, or portions thereof, tendered will be accepted for payment; (B) the Change of Control Purchase Price (including the amount of accrued but unpaid interest) and the Change of Control Purchase Date; (C) that any Security, or portion thereof, not tendered or accepted for payment will continue to accrue interest; (D) that, unless the Company defaults in depositing cash with the Paying Agent in accordance with the last paragraph of this Section 10.1, or such payment is prevented for any reason, any Security, or portion thereof, accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date; (E) that Holders electing to have a Security, or portion thereof, purchased pursuant to a Change of Control Offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Paying Agent (which may not for purposes of this Section 10.1, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the Company) at the address specified in the notice prior to the expiration of the Change of Control Offer; (F) that Holders will be entitled to withdraw their election, in whole or in part, if the Paying Agent receives, prior to the expiration of the Change of Control Offer, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities the Holder is withdrawing and a statement containing a facsimile signature and stating that such Holder is withdrawing his election to have such principal amount of Securities purchased; (G) that Holders whose Securities are purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; and (H) a brief description of the events resulting in such Change of Control. Any such Change of Control Offer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture relating to a Change of Control, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under such provisions of this Indenture by virtue thereof.
Appears in 1 contract
Samples: Indenture (Hallmark America Inc)
Repurchase of Securities at Option of the Holder. Upon (A) At the option of the Holder thereof, the Securities (or portions thereof that are integral multiples of $1,000 in principal amount) shall be repurchased by the Company pursuant to PARAGRAPH 8 of the Securities on April 15, 2011 (the "OPTIONAL REPURCHASE DATE"), at a ------------------------------------------------------- Change repurchase price, payable in cash, equal to one hundred percent (100%) of Control. -----------------the principal amount of the Securities (or such portions thereof) to be so repurchased (the "OPTIONAL REPURCHASE PRICE"), plus accrued and unpaid interest, if any, to, but excluding, the Optional Repurchase Date (provided, that such accrued and unpaid interest shall be paid to the Holder of record of such Securities at the close of business on the record date immediately preceding the Optional Repurchase Date), upon:
(i) delivery to the Company (if it is acting as its own Paying Agent), or to a Paying Agent designated by the Company for such purpose in the Optional Repurchase Notice, by such Holder, at any time from the opening of business on the date that is twenty (20) Business Days prior to the Optional Repurchase Date until the close of business on the third (3rd) Business Day immediately preceding the Optional Repurchase Date, of a Repurchase Notice, in the form set forth in the Securities or any other form of written notice substantially similar thereto, in each case, duly completed and signed, with appropriate signature guarantee, stating:
(a) Upon the occurrence certificate number(s) of the Securities that the Holder will deliver to be purchased, if such Securities are in certificated form;
(b) the principal amount of Securities to be purchased, which must be $1,000 or integral multiples thereof; and
(c) that such principal amount of Securities are to be purchased as of the Optional Repurchase Date pursuant to the terms and conditions specified in PARAGRAPH 8 of the Securities and in this Indenture; and
(ii) delivery to the Company (if it is acting as its own Paying Agent), or to a Change Paying Agent designated by the Company for such purpose in the Optional Repurchase Notice, at any time after delivery of Controlsuch Repurchase Notice, each of such Securities (together with all necessary endorsements), such delivery being a condition to receipt by the Holder of the Optional Repurchase Price therefore plus accrued and unpaid interest, if any, payable as herein provided upon Repurchase at Holder's Option (provided, however, that the Holder of record of such Securities on the record date immediately preceding the Optional Repurchase Date need not surrender such Securities in order to be entitled to receive, on the Optional Repurchase Date, the accrued and unpaid interest due thereon). If such Securities are held in book-entry form through the Depositary, the Repurchase Notice shall comply with the then-applicable procedures of the Depositary. Upon such delivery of Securities to the Company (if it is acting as its own Paying Agent) or such Paying Agent, such Holder shall be entitled to receive, upon request, from the Company or such Paying Agent, as the case may be, a nontransferable receipt of deposit evidencing such delivery. Notwithstanding anything herein to the contrary, any Holder that has delivered the Repurchase Notice contemplated by this SECTION 3.08(A) to the Company (if it is acting as its own Paying Agent) or to a Paying Agent designated by the Company for such purpose in the Optional Repurchase Notice shall have the right to withdraw such Repurchase Notice by delivery, at any time prior to the close of business on the third (3rd) Business Day immediately preceding the Optional Repurchase Date, of a written notice of withdrawal to the Company (if acting as its own Paying Agent) or the Paying Agent, which notice shall contain the information specified in SECTION 3.08(B)(VII). The Paying Agent shall promptly notify the Company of the receipt by it of any Repurchase Notice or written notice of withdrawal thereof.
(B) The Company shall give notice (the "OPTIONAL REPURCHASE NOTICE") on a date not less than twenty (20) Business Days prior to the Optional Repurchase Date to each Holder at its address shown in the register of the Registrar and to each beneficial owner as required by applicable law. Such notice shall state:
(i) the Optional Repurchase Price plus accrued and unpaid interest, if any, to, but excluding, the Optional Repurchase Date and the Conversion Rate;
(ii) the names and addresses of the Paying Agent and the Conversion Agent;
(iii) that Securities with respect to which a Repurchase Notice is given by a Holder may be converted pursuant to ARTICLE X, if otherwise convertible in accordance with ARTICLE X, only if such Repurchase Notice has been withdrawn in accordance with this SECTION 3.08 or if there shall be a Default in the payment of such Optional Repurchase Price or in accrued and unpaid interest, if any, payable as herein provided upon Repurchase at Holder's Option;
(iv) that Securities (together with any necessary endorsements) must be surrendered to the Paying Agent to collect payment of the Optional Repurchase Price plus (if such Holder was the Holder of record of the applicable Security at the close of business on the record date immediately preceding the Optional Repurchase Date) accrued and unpaid interest, if any, payable as herein provided upon Repurchase at Holder's Option;
(v) that the Optional Repurchase Price, plus accrued and unpaid interest, if any, to, but excluding, the Optional Repurchase Date, for any Security as to which a Repurchase Notice has been given and not withdrawn will be paid as promptly as practicable, but in no event later than the third (3rd) Business Day after the later of the Optional Repurchase Date or the time of delivery of the Security as described in CLAUSE (IV) above; provided, however, that such accrued and unpaid interest shall be paid, on the applicable interest payment date, to the Holder of record of such Security at the close of business on the record date immediately preceding the Optional Repurchase Date;
(vi) the procedures the Holder must follow to exercise rights under this SECTION 3.08 (including the name and address of the Paying Agent) and a brief description of those rights;
(vii) that a Holder will be entitled to withdraw its election in the Repurchase Notice if the Company (if acting as its own Paying Agent) or the Paying Agent receives, at any time prior to the close of business on the third (3rd) Business Day immediately preceding the Optional Repurchase Date, or such longer period as may be required by law, a letter or facsimile transmission (receipt of which is confirmed and promptly followed by a letter) setting forth (I) the name of such Holder, (II) a statement that such Holder is withdrawing its election to have Securities repurchased by the Company on the Optional Repurchase Date pursuant to a Repurchase at Holder's Option, (III) the certificate number(s) of such Securities to be so withdrawn, if such Securities are in certificated form, (IV) the principal amount of the Securities of such Holder to be so withdrawn, which amount must be $1,000 or integral multiples thereof and (V) the principal amount, if any, of the Securities of such Holder that remain subject to the Repurchase Notice delivered by such Holder in accordance with this SECTION 3.08, which amount must be $1,000 or integral multiples hereof;
(viii) that on and after the Optional Repurchase Date (unless here shall be a Default in the payment of the consideration payable s herein provided upon a Repurchase at Holder's Option), interest on securities subject to Repurchase at Holder's Option will cease to accrue, and all rights of the Holders of such Securities shall terminate, other than the right to receive, in accordance herewith, the consideration payable as herein provided upon a Repurchase at Holder's Option; and
(ix) the CUSIP number or numbers, as the case may be, of the Securities. At the Company's request, upon reasonable prior written notice, the Trustee shall mail such Optional Repurchase Notice in the Company's name and at the Company's expense; provided, however, that the form and content of such Optional Repurchase Notice shall be prepared by the Company. No failure of the Company to give an Optional Repurchase Notice shall limit any Holder's right pursuant hereto to exercise its rights to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of purchase such Holder's Securities pursuant to a Repurchase at Holder's Option.
(C) Subject to the offer described below (provisions of this SECTION 3.08, the "Change of Control Offer") at an offer price in cash equal Company shall pay, or cause to 101% of be paid, the aggregate principal amount thereof Optional Repurchase Price, plus accrued and unpaid interest thereoninterest, if any, to, but excluding, the Optional Repurchase Date, with respect to each Security subject to Repurchase at Holder's Option to the Holder thereof as promptly as practicable, but in no event later than the third (3rd) Business Day after the later of the Optional Repurchase Date and the time such Security (together with all necessary endorsements) is surrendered to the Paying Agent; provided, however, that such accrued and unpaid interest shall be paid, on the applicable interest payment date, to the Holder of record of such Security at the close of business on the record date of purchase immediately preceding the Optional Repurchase Date.
(D) Prior to 10:00 A.M., New York City time, at least one (1) Business Day prior to the "Change of Control Payment"). Within ten days following any Change of ControlOptional Repurchase Date, the Company shall mail deposit with a notice Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust in accordance with SECTION 2.04) money, in funds immediately available on the Optional Repurchase Date, sufficient to each pay the Optional Repurchase Price, plus accrued and unpaid interest, if any, to, but excluding, the Optional Repurchase Date, of all of the Securities that are to be purchased by the Company on the Optional Repurchase Date pursuant to a Repurchase at Holder's Option. The Paying Agent shall return to the Company, as soon as practicable, any money not required for that purpose.
(E) Once the Repurchase Notice has been duly delivered in accordance with this SECTION 3.08, the Securities to be repurchased pursuant to the Repurchase at Holder's Option shall, on the Optional Repurchase Date, become due and payable in accordance herewith, and, on and after such date (unless there shall be a Default in the payment of the consideration payable as herein provided upon a Repurchase at Holder's Option), such Securities shall cease to bear interest, and all rights of the Holders or such Securities shall terminate, other than the right to receive, in accordance herewith, the such consideration.
(F) Securities with respect to which a Repurchase Notice has been duly delivered in accordance with this SECTION 3.08 may be converted pursuant to ARTICLE X, if otherwise convertible in accordance with ARTICLE X, only if such Repurchase Notice has been withdrawn in accordance with this SECTION 3.08 or if there shall be a Default in the payment of the consideration payable as herein provided upon a Repurchase at Holder's Option.
(G) If any Security subject to Repurchase at Holder's Option shall not be paid in accordance herewith, the principal of, and accrued and unpaid interest on, such Security shall, until paid, bear interest, payable in cash, at the rate borne by such Security on the principal amount of such Security, and such Security shall continue to be convertible pursuant to ARTICLE X.
(H) Any Security that is to be submitted for Repurchase at Holder's Option only in part shall be delivered pursuant to this SECTION 3.08 (with, if the Company or the Securities Agent so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder describing thereof or its attorney duly authorized in writing, with a medallion guarantee), and the transaction Company shall execute, and the Trustee shall, upon receipt of a Company Order, authenticate and make available for delivery to the Holder of such Security, without service charge, a new Security or transactions that constitute Securities, of any authorized denomination as requested by such Holder, of the Change same tenor and in aggregate principal amount equal to the portion of Control such Security not submitted for Repurchase at Holder's Option.
(I) Notwithstanding anything herein to the contrary, there shall be no purchase of any Securities pursuant to this SECTION 3.08 if there has occurred (prior to, on or after, as the case may be, the giving, by the Holders of such Securities, of the required Repurchase Notice) and offering is continuing an Event of Default (other than a Default in the payment of the consideration payable as herein provided upon a Repurchase at Holder's Option or a Default arising from the Company's failure to repurchase provide the applicable Optional Repurchase Notice). The Paying Agent will promptly return to the respective Holders thereof any Securities held by it during the continuance of an Event of Default (other than a Default in the payment of such consideration or arising from the Company's failure to provide the applicable Optional Repurchase Notice).
(J) Notwithstanding anything herein to the contrary, if the option granted to Holders to require the purchase of the Securities on the date specified in such notice (the "Change of Control Payment Date"), which date shall be no earlier than the earliest date permitted under Rule 14e-1 under the Exchange Act ("Rule 14e-1") and no later than 60 days from the date such notice Optional Repurchase Date is mailed. The Company shall comply with the requirements of Rule 14e-1 and any other laws and/or regulations of the SEC determined to the extent such laws and regulations are applicable in connection with the repurchase of the Securities as constitute a result of a Change of Control. To the extent that any provisions of the laws and/or regulations of the SEC conflict with any provision contained hereintender offer, the Company shall comply with all applicable tender offer rules under the Exchange Act, including Rule 13e-4 and Regulation 14E thereunder, and with all other applicable SEC laws and regulations laws, and will not be deemed to have breached its obligations hereunder. On the Change of Control Payment Date, the Company shall, to the extent lawful, (i) accept for payment all the Securities or portions thereof properly tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all the Securities or portions thereof so tendered and (iii) deliver or cause to be delivered to the Trustee the Securities so accepted together with an Officers' Certificate stating the aggregate principal amount of the Securities or portions thereof being purchased by the Company. The Paying Agent shall promptly mail to each Holder of the Securities so tendered the Change of Control Payment for such Securities, and the Trustee shall authenticate and mail (or cause to be transferred by book entry) to each Holder file a new Security equal in principal amount to any unpurchased portion of the Securities surrendered, if any; provided that each such new Security will be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable following the Change of Control Payment Date. Notwithstanding the application of the provisions of Article V, the Change of Control provisions described in this Section 10.1 shall apply to the Securities. Except as described above with respect to a Change of Control, the Holders of the Securities may not require the Company to repurchase or redeem the Securities in the event of a takeover, recapitalization or similar transaction. The Company will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer and purchases all the Securities validly tendered and not withdrawn under such Change of Control Offer. If the Change of Control Payment Date is on or after an Interest Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Security is registered at the close of business on such Record Date, and such interest will not be payable to Holders who tender the Securities pursuant to the Change of Control Offer.
(b) In the event that, pursuant to this Section 10.1, the Company shall be required to commence a Change of Control Offer, the Company shall follow the procedures set forth in this Section 10.1 as follows:
(i) the Change of Control Offer shall commence within 10 Business Days following the occurrence of a Change of Control;
(ii) the Change of Control Offer shall remain open for 20 Business Days following its commencement (the "Change of Control Offer Period");
(iii) upon the expiration of the Change of Control Offer Period, the Company promptly shall purchase all of the tendered Securities at the Change of Control Purchase Price;
(iv) if the Change of Control is on or after an Interest Record Date and on or before the related Interest Payment Date, any accrued interest will be paid to the Person in whose name a Security is registered at the close of business on such record date, and no additional interest will be payable to Securityholders who tender Securities pursuant to the Change of Control Offer;
(v) the Company shall provide the Trustee and the Paying Agent with written notice of the Change of Control Offer at least three Business Days before the commencement of any Change of Control Offer; and
(vi) on or before the commencement of any Change of Control Offer, the Company or the Trustee (upon the request and at the expense of the Company) shall send, by first-class mail, a notice to each of the Securityholders, which (to the extent consistent with this Indenture) shall govern the terms of the Change of Control Offer and shall state:
(A) that the Change of Control Offer is being made pursuant to this Section 10.1 and that all Securities, or portions thereof, tendered will be accepted for payment;
(B) the Change of Control Purchase Price (including the amount of accrued but unpaid interest) and the Change of Control Purchase Date;
(C) that any Security, or portion thereof, not tendered or accepted for payment will continue to accrue interest;
(D) that, unless the Company defaults in depositing cash with the Paying Agent in accordance with the last paragraph of this Section 10.1, or such payment is prevented for any reason, any Security, or portion thereof, accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date;
(E) that Holders electing to have a Security, or portion thereof, purchased pursuant to a Change of Control Offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Paying Agent (which may not for purposes of this Section 10.1, notwithstanding anything in this Indenture to the contrary, be the Company Schedule TO or any Affiliate of the Company) at the address specified in the notice prior to the expiration of the Change of Control Offer;
(F) that Holders will be entitled to withdraw their election, in whole or in part, if the Paying Agent receives, prior to the expiration of the Change of Control Offer, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities the Holder is withdrawing and a statement containing a facsimile signature and stating that such Holder is withdrawing his election to have such principal amount of Securities purchased;
(G) that Holders whose Securities are purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; and
(H) a brief description of the events resulting in such Change of Control. Any such Change of Control Offer shall comply with the requirements of Rule 14e-1 other schedules required under the Exchange Act and or any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture relating to a Change of Control, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under such provisions of this Indenture by virtue thereoflaws.
Appears in 1 contract
Samples: Indenture (LDK Solar Co., Ltd.)
Repurchase of Securities at Option of the Holder. Upon a ------------------------------------------------------- Change of Control. -----------------------------------------
(a) Upon In the occurrence of event that a Change of ControlControl has occurred, if the Company has not first redeemed all of such holder's Securities in connection with a Change of Control Redemption Event as provided in Article III, each Holder holder of the Securities shall have the right right, at such holder's option, pursuant to an irrevocable and unconditional offer by the Company (the "Change of Control Offer"), to require the Company to repurchase all or any part of such holder's Securities (equal to provided, that the principal amount of such Securities must be $1,000 or an integral multiple thereof) of such Holder's Securities pursuant to the offer described below on a date (the "Change of Control OfferPurchase Date") that is no later than 45 Business Days after the occurrence of such Change of Control, at an offer a cash price in cash equal to 101% of the aggregate principal amount thereof plus (the "Change of Control Purchase Price"), together with accrued and unpaid interest thereonand Liquidated Damages, if any, to the date of purchase (the "Change of Control Payment")Purchase Date. Within ten Notwithstanding anything in this Article X to the contrary, prior to the commencement of a Change of Control Offer, but in any event within 30 days following any Change of Control, the Company shall mail (i)(a) repay in full and terminate all commitments under Indebtedness under the New Credit Facility and all other Senior Debt the terms of which require repayment upon a notice to each Holder describing the transaction or transactions that constitute the Change of Control or (b) offer to repay in full and offering to repurchase the Securities on the date specified in such notice (the "Change of Control Payment Date"), which date shall be no earlier than the earliest date permitted terminate all commitments under Rule 14e-1 all Indebtedness under the Exchange Act New Credit Facility and all such other Senior Debt and repay the Indebtedness owed to each lender which has accepted such offer in full or ("Rule 14e-1"ii) obtain the requisite consents under the New Credit Facility and no later than 60 days from the date all such notice is mailed. The Company shall comply with the requirements of Rule 14e-1 and any other laws and/or regulations of the SEC Senior Debt to the extent such laws and regulations are applicable in connection with permit the repurchase of the Securities as a result of a Change of Controlprovided herein. To the extent that any provisions of the laws and/or regulations of the SEC conflict with any provision contained herein, the Company shall The Company's failure to comply with the applicable SEC laws and regulations and will not be deemed to have breached its obligations hereunder. On the Change preceding sentence shall constitute an Event of Control Payment Date, the Company shall, to the extent lawful, (i) accept for payment all the Securities or portions thereof properly tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all the Securities or portions thereof so tendered and (iii) deliver or cause to be delivered to the Trustee the Securities so accepted together with an Officers' Certificate stating the aggregate principal amount of the Securities or portions thereof being purchased by the Company. The Paying Agent shall promptly mail to each Holder of the Securities so tendered the Change of Control Payment for such Securities, and the Trustee shall authenticate and mail (or cause to be transferred by book entry) to each Holder a new Security equal in principal amount to any unpurchased portion of the Securities surrendered, if any; provided that each such new Security will be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable following the Change of Control Payment Date. Notwithstanding the application of the provisions of Article V, the Change of Control provisions Default described in this Section 10.1 shall apply to the Securities. Except as described above with respect to a Change of Control, the Holders of the Securities may not require the Company to repurchase or redeem the Securities in the event of a takeover, recapitalization or similar transaction. The Company will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer and purchases all the Securities validly tendered 6.1(iv) and not withdrawn under such Change of Control Offer. If the Change of Control Payment Date is on or after an Interest Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Security is registered at the close of business on such Record Date, and such interest will not be payable to Holders who tender the Securities pursuant to the Change of Control OfferSection 6.1(ii).
(b) In the event that, pursuant to this Section 10.1, the Company shall be required to commence a Change of Control Offer, the Company shall follow the procedures set forth in this Section 10.1 as follows:
(i) the Change of Control Offer shall commence within 10 20 Business Days following the occurrence of a Change of Control;
(ii) the Change of Control Offer shall remain open for at least 20 Business Days following its commencement (the "Change of Control Offer Period");
(iii) upon the expiration of the Change of Control Offer Period, the Company promptly shall purchase all of the tendered Securities at the Change of Control Purchase Price;
(iv) if the Change of Control is on or after an Interest Record Date interest payment record date and on or before the related Interest Payment Dateinterest payment date, any accrued interest (and Liquidated Damages, if any) will be paid to the Person in whose name a Security is registered at the close of business on such record date, and no additional interest will be payable to Securityholders who tender Securities pursuant to the Change of Control Offer;
(v) the Company shall provide the Trustee and the Paying Agent with written notice of the Change of Control Offer at least three Business Days before the commencement of any Change of Control Offer; and
(vi) on or before the commencement of any Change of Control Offer, the Company or the Trustee (upon the request and at the expense of the Company) shall send, by first-class mail, a notice to each of the Securityholders, which (to the extent consistent with this Indenture) shall govern the terms of the Change of Control Offer and shall state:
(A) that the Change of Control Offer is being made pursuant to this Section 10.1 and that all Securities, or portions thereof, tendered will be accepted for payment;
(B) the Change of Control Purchase Price (including the amount of accrued but unpaid interestinterest (and Liquidated Damages, if any)) and the Change of Control Purchase Date;
(C) that any Security, or portion thereof, not tendered or accepted for payment will continue to accrue interest;
(D) that, unless the Company defaults in depositing cash with the Paying Agent in accordance with the last paragraph of this Section 10.1, or such payment is prevented for any reason, any Security, or portion thereof, accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date;
(E) that Holders electing to have a Security, or portion thereof, purchased pursuant to a Change of Control Offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Paying Agent (which may not for purposes of this Section 10.1, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the Company) at the address specified in the notice prior to the expiration of the Change of Control Offer;
(F) that Holders will be entitled to withdraw their election, in whole or in part, if the Paying Agent receives, prior to the expiration of the Change of Control Offer, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities the Holder is withdrawing and a statement containing a facsimile signature and stating that such Holder is withdrawing his election to have such principal amount of Securities purchased;
(G) that Holders whose Securities are purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; and
(H) a brief description of the events resulting in such Change of Control. Any such Change of Control Offer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture relating to a Change of Control, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under such provisions of this Indenture by virtue thereof. On or before the Change of Control Purchase Date, the Company shall (i) accept for payment Securities or portions thereof properly tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent cash sufficient to pay the Change of Control Purchase Price (together with accrued and unpaid interest and Liquidated Damages, if any) of all Securities so tendered and (iii) deliver to the Trustee Securities so accepted together with an Officers' Certificate listing the Securities or portions thereof being purchased by the Company. The Paying Agent promptly will pay the Holders of Securities so accepted an amount equal to the Change of Control Purchase Price (together with accrued and unpaid interest and Liquidated Damages, if any), and the Trustee promptly will authenticate and deliver to such Holders a new Security equal in principal amount to any unpurchased portion of the Security surrendered. Any Securities not so accepted will be delivered promptly by the Company to the Holder thereof. The Company publicly will announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Purchase Date.
Appears in 1 contract
Repurchase of Securities at Option of the Holder. Upon a ------------------------------------------------------- Change of ----------------------------------------------------------------- Control. ------------------------
(a) Upon In the occurrence of event that a Change of ControlControl Triggering Event occurs, each Holder of the Securities shall have the right right, at such Holder's option, subject to the terms and conditions of this Indenture, to require the Company to repurchase all or any part of such Holder's Securities (equal to provided, that the principal amount of such Securities at maturity must be $1,000 or an integral multiple thereof) on a date selected by the Company that is no later than 45 Business Days after the occurrence of such Holder's Securities pursuant to the offer described below (the "Change of Control Offer") at an offer price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase (the "Change of Control Payment"). Within ten days following any Change of Control, the Company shall mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase the Securities on the date specified in such notice Triggering Event (the "Change of Control Payment Date"), which date shall be no earlier than at a cash price (the earliest date permitted under Rule 14e-1 under the Exchange Act ("Rule 14e-1Change of Control Payment") and no later than 60 days from the date such notice is mailed. The Company shall comply with the requirements of Rule 14e-1 and any other laws and/or regulations equal to 101% of the SEC aggregate principal amount thereof, plus (subject to the extent right of Holders of record on a Record Date that is on or prior to such laws repurchase date to receive interest due on the corresponding Interest Payment Date and regulations are applicable in connection with the repurchase of the Securities as a result of a Change of Control. To the extent that any provisions of the laws and/or regulations of the SEC conflict with any provision contained hereinsubject to clause (b)(4) below) accrued and unpaid interest, the Company shall comply with the applicable SEC laws if any, to and regulations and will not be deemed to have breached its obligations hereunder. On including the Change of Control Payment Date.
(b) In the event of a Change of Control Triggering Event, the Company shallshall be required to commence an offer to purchase Securities (a "Change of Control Offer") as follows:
(1) the Change of Control Offer shall commence within 10 Business Days following the occurrence of the Change of Control Triggering Event;
(2) the Change of Control Offer shall remain open for 20 Business Days, except to the extent lawfulthat a longer period is required by applicable law, but in any case not more than 35 Business Days following commencement (ithe "Change of Control Offer Period");
(3) accept for payment all upon the Securities or portions thereof properly tendered pursuant to the expiration of a Change of Control Offer, (ii) deposit with the Paying Agent an amount equal to Company shall purchase all of the properly tendered Securities at the Change of Control Payment in respect of all the Securities or portions thereof so tendered and Payment, plus accrued interest;
(iii4) deliver or cause to be delivered to the Trustee the Securities so accepted together with an Officers' Certificate stating the aggregate principal amount of the Securities or portions thereof being purchased by the Company. The Paying Agent shall promptly mail to each Holder of the Securities so tendered the Change of Control Payment for such Securities, and the Trustee shall authenticate and mail (or cause to be transferred by book entry) to each Holder a new Security equal in principal amount to any unpurchased portion of the Securities surrendered, if any; provided that each such new Security will be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable following the Change of Control Payment Date. Notwithstanding the application of the provisions of Article V, the Change of Control provisions described in this Section 10.1 shall apply to the Securities. Except as described above with respect to a Change of Control, the Holders of the Securities may not require the Company to repurchase or redeem the Securities in the event of a takeover, recapitalization or similar transaction. The Company will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer and purchases all the Securities validly tendered and not withdrawn under such Change of Control Offer. If the Change of Control Payment Date is on or after an Interest a Record Date and on or before the related Interest Payment Dateinterest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Security is registered at the close of business on such Record Date, and such interest will not be payable to Holders who tender the Securities pursuant to the Change of Control Offer.
(b) In the event that, pursuant to this Section 10.1, the Company shall be required to commence a Change of Control Offer, the Company shall follow the procedures set forth in this Section 10.1 as follows:
(i) the Change of Control Offer shall commence within 10 Business Days following the occurrence of a Change of Control;
(ii) the Change of Control Offer shall remain open for 20 Business Days following its commencement (the "Change of Control Offer Period");
(iii) upon the expiration of the Change of Control Offer Period, the Company promptly shall purchase all of the tendered Securities at the Change of Control Purchase Price;
(iv) if the Change of Control is on or after an Interest Record Date and on or before the related Interest Payment Date, any accrued interest will be paid to the Person in whose name a Security is registered at the close of business on such record date, and no additional interest will be payable to Securityholders who tender Securities pursuant to the Change of Control Offer;
(v5) the Company shall provide the Trustee and the Paying Agent with written notice of the Change of Control Offer at least three Business Days before the commencement of any Change of Control Offer; and
(vi6) on or before the commencement of any Change of Control Offer, the Company or the Trustee Registrar (upon the request and at the expense of the Company) shall send, by first-class mail, a notice to each of the Securityholders, which (to the extent consistent with this Indenture) shall govern the terms of the Change of Control Offer and shall state:
(Ai) that the Change of Control Offer is being made pursuant to such notice and this Section 10.1 11.1 and that all Securities, or portions thereof, tendered will be accepted for payment;
(Bii) the Change of Control Purchase Price Payment (including the amount of accrued but and unpaid interest, subject to clause (b)(4) above), the Change of Control Payment Date and the Change of Control Purchase DatePut Date (as defined below);
(Ciii) that any Security, or portion thereof, not tendered or accepted for payment will continue to accrue interest;
(Div) that, unless the Company defaults in depositing cash Cash with the Paying Agent in accordance with the last paragraph of this Section 10.1, Article XI or such payment is prevented for any reasonprevented, any Security, or portion thereof, accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Payment Date;
(Ev) that Holders electing to have a Security, or portion thereof, purchased pursuant to a Change of Control Offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Paying Agent (which may not for purposes of this Section 10.111.1, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the Company) at the address specified in the notice prior to the close of business on the earlier of (a) the third Business Day prior to the Change of Control Payment Date and (b) the third Business Day following the expiration of the Change of Control OfferOffer (such earlier date being the "Change of Control Put Date");
(Fvi) that Holders will be entitled to withdraw their election, in whole or in part, if the Paying Agent (which may not for purposes of this Section 11.1, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the Company) receives, prior up to the expiration close of business on the Change of Control OfferPut Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities the Holder is withdrawing and a statement containing a facsimile signature and stating that such Holder is withdrawing his election to have such principal amount of Securities purchased;
(G) that Holders whose Securities are purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; and
(Hvii) a brief description of the events resulting in such Change of ControlControl Triggering Event. Any such Change of Control Offer shall comply with the requirements all applicable provisions of Rule 14e-1 under the Exchange Act Federal and state laws, including those regulating tender offers, if applicable, and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture relating which conflict with such laws shall be deemed to a be superseded by the provisions of such laws. On or before the Change of ControlControl Payment Date, the Company shall comply (i) accept for payment Securities or portions thereof properly tendered pursuant to the Change of Control Offer on or before the Change of Control Put Date, (ii) deposit with the applicable securities laws Paying Agent Cash sufficient to pay the Change of Control Payment (including accrued and regulations unpaid interest, subject to clause (b)(4) above) for all Securities or portions thereof so tendered and (iii) deliver to the Registrar Securities so accepted together with an Officers' Certificate listing the aggregate principal amount of the Securities or portions thereof being purchased by the Company. The Paying Agent shall on the Change of Control Payment Date or promptly thereafter mail to Holders of Securities so accepted payment in an amount equal to the Change of Control Payment (together with accrued and unpaid interest) for such Securities (subject to clause (b)(4) above), and the Trustee or its authenticating agent shall promptly authenticate and the Registrar shall mail or deliver (or cause to be transferred by book entry) to such Holders a new Security equal in principal amount to any unpurchased portion of the Security surrendered; provided, however, that each such new Security will be in a principal amount of $1,000 or an integral multiple thereof. Any Securities not so accepted shall be deemed promptly mailed or delivered by the Company to have breached its obligations under such provisions the Holder thereof. The Company will publicly announce the results of this Indenture by virtue the Change of Control Offer on or as soon as practicable after the consummation thereof.
Appears in 1 contract
Samples: Indenture (HMH Properties Inc)
Repurchase of Securities at Option of the Holder. Upon a ------------------------------------------------------- Change of Control. -----------------
(a) Upon In the occurrence of event that a Change of ControlControl has occurred, each Holder of the Securities shall will have the right right, at such Holder's option, pursuant to an irrevocable and unconditional offer by the Company (the "Change of Control Offer"), to require the Company to repurchase all or any part (equal to $1,000 principal amount or an integral multiple thereof) of such Holder's Securities pursuant to the offer described below Securities, on a date (the "Change of Control OfferPurchase Date") that is no later than 45 Business Days after the occurrence of such Change of Control at an offer a cash price in cash (the "Change of Control Purchase Price") equal to 101% of the aggregate principal amount thereof plus thereof, together with any accrued and unpaid interest thereon, if any, to the date Change of purchase Control Purchase Date. The Change of Control Offer shall be made within 30 Business Days following a Change of Control and shall remain open for 20 Business Days following its commencement (the "Change of Control PaymentOffer Period"). Within ten days following any Change of Control, the Company shall mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase the Securities on the date specified in such notice (the "Change of Control Payment Date"), which date shall be no earlier than the earliest date permitted under Rule 14e-1 under the Exchange Act ("Rule 14e-1") and no later than 60 days from the date such notice is mailed. The Company shall comply with the requirements of Rule 14e-1 and any other laws and/or regulations of the SEC to the extent such laws and regulations are applicable in connection with the repurchase of the Securities as a result of a Change of Control. To the extent that any provisions of the laws and/or regulations of the SEC conflict with any provision contained herein, the Company shall comply with the applicable SEC laws and regulations and will not be deemed to have breached its obligations hereunder. On the Change of Control Payment Date, the Company shall, to the extent lawful, (i) accept for payment all the Securities or portions thereof properly tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all the Securities or portions thereof so tendered and (iii) deliver or cause to be delivered to the Trustee the Securities so accepted together with an Officers' Certificate stating the aggregate principal amount of the Securities or portions thereof being purchased by the Company. The Paying Agent shall promptly mail to each Holder of the Securities so tendered the Change of Control Payment for such Securities, and the Trustee shall authenticate and mail (or cause to be transferred by book entry) to each Holder a new Security equal in principal amount to any unpurchased portion of the Securities surrendered, if any; provided that each such new Security will be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results Upon expiration of the Change of Control Offer on or as soon as practicable following the Change of Control Payment Date. Notwithstanding the application of the provisions of Article VPeriod, the Change of Control provisions described Company shall purchase all Securities properly tendered in this Section 10.1 shall apply to the Securities. Except as described above with respect to a Change of Control, the Holders of the Securities may not require the Company to repurchase or redeem the Securities in the event of a takeover, recapitalization or similar transaction. The Company will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer and purchases all the Securities validly tendered and not withdrawn under such Change of Control Offer. If the Change of Control Payment Date is on or after an Interest Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Security is registered at the close of business on such Record Date, and such interest will not be payable to Holders who tender the Securities pursuant response to the Change of Control Offer.
(b) In the event that, pursuant to this Section 10.111.1, the Company shall be required to commence such an offer to purchase Securities (a "Change of Control Offer"), the Company shall follow the procedures set forth in this Section 10.1 11.1 as follows:
(i) the Change of Control Offer shall commence within 10 Business Days following the occurrence of a Change of Control;
(ii) the Change of Control Offer shall remain open for 20 Business Days following its commencement (the "Change of Control Offer Period");
(iii) upon the expiration of the Change of Control Offer Period, the Company promptly shall purchase all of the tendered Securities at the Change of Control Purchase Price;
(iv) if the Change of Control is on or after an Interest Record Date and on or before the related Interest Payment Date, any accrued interest will be paid to the Person in whose name a Security is registered at the close of business on such record date, and no additional interest will be payable to Securityholders who tender Securities pursuant to the Change of Control Offer;
(v1) the Company shall provide the Trustee and the Paying Agent with written notice of the Change of Control Offer at least three 5 Business Days before the commencement of any Change of Control Offer; and
(vi2) on or before the commencement of any Change of Control Offer, the Company or the Trustee (upon the request and at the expense of the Company) shall send, by first-class mail, a notice to each of the SecurityholdersHolders, which (to the extent consistent with this Indenture) shall govern the terms of the Change of Control Offer and shall state:
(Ai) that the Change of Control Offer is being made pursuant to such notice and this Section 10.1 11.1 and that all Securities, or portions thereof, tendered will be accepted for payment;
(Bii) the Change of Control Purchase Price (including the amount of accrued but and unpaid interest) ), the Change of Control Purchase Date and the Change of Control Purchase DatePut Date (as defined below);
(Ciii) that any Security, or portion thereof, not tendered or accepted for payment will continue to accrue interest;
(Div) that, unless the Company defaults in depositing cash with the Paying Agent in accordance with the last paragraph of this Section 10.1, clause (b) or such payment is prevented for any reasonprevented, any Security, or portion thereof, accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Date;
(Ev) that Holders electing to have a Security, or portion thereof, purchased pursuant to a Change of Control Offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Paying Agent (which may not for purposes of this Section 10.111.1, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the Company) at the address specified in the notice prior to the close of business on the earlier of (a) the third Business Day prior to the Change of Control Purchase Date and (b) the third Business Day following the expiration of the Change of Control OfferOffer (such earlier date being the "Change of Control Put Date");
(Fvi) that Holders will be entitled to withdraw their election, in whole or in part, if the Paying Agent (which may not for purposes of this Section 11.1, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the Company) receives, prior up to the expiration close of business (5:00 p.m. New York Time) on the Change of Control OfferPut Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities the Holder is withdrawing and a statement containing a facsimile signature and stating that such Holder is withdrawing his election to have such principal amount of Securities purchased;
(G) that Holders whose Securities are purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; and
(Hvii) a brief description of the events resulting in such Change of Control. Any such On or before the Change of Control Offer shall comply with Purchase Date, the requirements of Rule 14e-1 under the Exchange Act Company will (i) accept for payment Securities or portions thereof properly tendered and any other securities laws and regulations thereunder not properly withdrawn pursuant to the extent such laws and regulations are applicable in connection with the repurchase of the Securities pursuant to a Change of Control Offer. To , (ii) deposit with the extent that Paying Agent cash sufficient to pay the provisions of any securities laws or regulations conflict with provisions of this Indenture relating to a Change of Control, the Company shall comply Control Purchase Price (together with the applicable securities laws accrued and regulations and shall not be deemed to have breached its obligations under such provisions unpaid interest) of this Indenture by virtue thereof.all Securities so tendered and
Appears in 1 contract
Repurchase of Securities at Option of the Holder. Upon a ------------------------------------------------------- Change -------------------------------------------------------------- of Control. ---------------------------
(a) Upon In the occurrence of event that a Change of ControlControl Triggering Event occurs, each Holder of the Securities shall have the right right, at such Holder's option, subject to the terms and conditions of this Indenture, to require the Company to repurchase all or any part of such Holder's Securities (equal to provided, that the principal amount of such Securities at maturity must be $1,000 or an integral multiple thereof) on a date selected by the Company that is no later than 45 Business Days after the occurrence of such Holder's Securities pursuant to the offer described below (the "Change of Control Offer") at an offer price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase (the "Change of Control Payment"). Within ten days following any Change of Control, the Company shall mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase the Securities on the date specified in such notice Triggering Event (the "Change of Control Payment Date"), which date shall be no earlier than at a cash price (the earliest date permitted under Rule 14e-1 under the Exchange Act ("Rule 14e-1Change of Control Payment") and no later than 60 days from the date such notice is mailed. The Company shall comply with the requirements of Rule 14e-1 and any other laws and/or regulations equal to 101% of the SEC aggregate principal amount thereof, plus (subject to the extent right of Holders of record on a Record Date that is on or prior to such laws repurchase date to receive interest due on the corresponding Interest Payment Date and regulations are applicable in connection with the repurchase of the Securities as a result of a Change of Control. To the extent that any provisions of the laws and/or regulations of the SEC conflict with any provision contained hereinsubject to clause (b)(4) below) accrued and unpaid interest, the Company shall comply with the applicable SEC laws if any, to and regulations and will not be deemed to have breached its obligations hereunder. On including the Change of Control Payment Date.
(b) In the event of a Change of Control Triggering Event, the Company shallshall be required to commence an offer to purchase Securities (a "Change of Control Offer") as follows:
(1) the Change of Control Offer shall commence within 10 Business Days following the occurrence of the Change of Control Triggering Event;
(2) the Change of Control Offer shall remain open for 20 Business Days, except to the extent lawfulthat a longer period is required by applicable law, but in any case not more than 35 Business Days following commencement (ithe "Change of Control Offer Period");
(3) accept for payment all upon the Securities or portions thereof properly tendered pursuant to the expiration of a Change of Control Offer, (ii) deposit with the Paying Agent an amount equal to Company shall purchase all of the properly tendered Securities at the Change of Control Payment in respect of all the Securities or portions thereof so tendered and , plus accrued interest;
(iii4) deliver or cause to be delivered to the Trustee the Securities so accepted together with an Officers' Certificate stating the aggregate principal amount of the Securities or portions thereof being purchased by the Company. The Paying Agent shall promptly mail to each Holder of the Securities so tendered the Change of Control Payment for such Securities, and the Trustee shall authenticate and mail (or cause to be transferred by book entry) to each Holder a new Security equal in principal amount to any unpurchased portion of the Securities surrendered, if any; provided that each such new Security will be in a principal amount of $1,000 or an integral multiple thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable following the Change of Control Payment Date. Notwithstanding the application of the provisions of Article V, the Change of Control provisions described in this Section 10.1 shall apply to the Securities. Except as described above with respect to a Change of Control, the Holders of the Securities may not require the Company to repurchase or redeem the Securities in the event of a takeover, recapitalization or similar transaction. The Company will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer and purchases all the Securities validly tendered and not withdrawn under such Change of Control Offer. If the Change of Control Payment Date is on or after an Interest a Record Date and on or before the related Interest Payment Dateinterest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Security is registered at the close of business on such Record Date, and such interest will not be payable to Holders who tender the Securities pursuant to the Change of Control Offer.
(b) In the event that, pursuant to this Section 10.1, the Company shall be required to commence a Change of Control Offer, the Company shall follow the procedures set forth in this Section 10.1 as follows:
(i) the Change of Control Offer shall commence within 10 Business Days following the occurrence of a Change of Control;
(ii) the Change of Control Offer shall remain open for 20 Business Days following its commencement (the "Change of Control Offer Period");
(iii) upon the expiration of the Change of Control Offer Period, the Company promptly shall purchase all of the tendered Securities at the Change of Control Purchase Price;
(iv) if the Change of Control is on or after an Interest Record Date and on or before the related Interest Payment Date, any accrued interest will be paid to the Person in whose name a Security is registered at the close of business on such record date, and no additional interest will be payable to Securityholders who tender Securities pursuant to the Change of Control Offer;
(v5) the Company shall provide the Trustee and the Paying Agent with written notice of the Change of Control Offer at least three Business Days before the commencement of any Change of Control Offer; and
(vi6) on or before the commencement of any Change of Control Offer, the Company or the Trustee Registrar (upon the request and at the expense of the Company) shall send, by first-class mail, a notice to each of the Securityholders, which (to the extent consistent with this Indenture) shall govern the terms of the Change of Control Offer and shall state:
(Ai) that the Change of Control Offer is being made pursuant to such notice and this Section 10.1 11.1 and that all Securities, or portions thereof, tendered will be accepted for payment;
(Bii) the Change of Control Purchase Price Payment (including the amount of accrued but and unpaid interest, subject to clause (b)(4) above), the Change of Control Payment Date and the Change of Control Purchase DatePut Date (as defined below);
(Ciii) that any Security, or portion thereof, not tendered or accepted for payment will continue to accrue interest;
(Div) that, unless the Company defaults in depositing cash Cash with the Paying Agent in accordance with the last paragraph of this Section 10.1, Article XI or such payment is prevented for any reasonprevented, any Security, or portion thereof, accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Purchase Payment Date;
(Ev) that Holders electing to have a Security, or portion thereof, purchased pursuant to a Change of Control Offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Paying Agent (which may not for purposes of this Section 10.111.1, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the Company) at the address specified in the notice prior to the close of business on the earlier of (a) the third Business Day prior to the Change of Control Payment Date and (b) the third Business Day following the expiration of the Change of Control OfferOffer (such earlier date being the "Change of Control Put Date");
(Fvi) that Holders will be entitled to withdraw their election, in whole or in part, if the Paying Agent (which may not for purposes of this Section 11.1, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the Company) receives, prior up to the expiration close of business on the Change of Control OfferPut Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities the Holder is withdrawing and a statement containing a facsimile signature and stating that such Holder is withdrawing his election to have such principal amount of Securities purchased;
(G) that Holders whose Securities are purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; and
(Hvii) a brief description of the events resulting in such Change of ControlControl Triggering Event. Any such Change of Control Offer shall comply with the requirements all applicable provisions of Rule 14e-1 under the Exchange Act Federal and state laws, including those regulating tender offers, if applicable, and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Indenture relating which conflict with such laws shall be deemed to a be superseded by the provisions of such laws. On or before the Change of ControlControl Payment Date, the Company shall comply (i) accept for payment Securities or portions thereof properly tendered pursuant to the Change of Control Offer on or before the Change of Control Put Date, (ii) deposit with the applicable securities laws Paying Agent Cash sufficient to pay the Change of Control Payment (including accrued and regulations unpaid interest, subject to clause (b)(4) above) for all Securities or portions thereof so tendered and (iii) deliver to the Registrar Securities so accepted together with an Officers' Certificate listing the aggregate principal amount of the Securities or portions thereof being purchased by the Company. The Paying Agent shall on the Change of Control Payment Date or promptly thereafter mail to Holders of Securities so accepted payment in an amount equal to the Change of Control Payment (together with accrued and unpaid interest) for such Securities (subject to clause (b)(4) above), and the Trustee or its authenticating agent shall promptly authenticate and the Registrar shall mail or deliver (or cause to be transferred by book entry) to such Holders a new Security equal in principal amount to any unpurchased portion of the Security surrendered; provided, however, that each such new Security will be in a principal amount of $1,000 or an integral multiple thereof. Any Securities not so accepted shall be deemed promptly mailed or delivered by the Company to have breached its obligations under such provisions the Holder thereof. The Company will publicly announce the results of this Indenture by virtue the Change of Control Offer on or as soon as practicable after the consummation thereof.
Appears in 1 contract
Samples: Indenture (HMH Properties Inc)
