Repurchase of Securities at Option of the Holder. (a) If (i) the Company incurs any New Debt and, as of the last day of the fiscal quarter in which such New Debt is incurred, the Ratio of Debt to Consolidated Capitalization is greater than .65 and the Cash Flow Coverage Ratio is less than 1.75 and (ii) as of the last day of the second full fiscal quarter commencing after the date of such incurrence (the "Leverage Measurement Date"), the Ratio of Debt to Consolidated Capitalization is greater than .65 and the Cash Flow Coverage Ratio is less than 1.75, a Special Repurchase Event shall be deemed to have occurred on such Leverage Measurement Date. (b) If (i) the Consolidated Tangible Net Worth of the Company is less than the Minimum Tangible Net Worth as of the end of any fiscal year and (ii) as of the last day of the second succeeding fiscal quarter (the "Net Worth Measurement Date"), the Consolidated Tangible Net Worth is less than the Minimum Tangible Net Worth, a Special Repurchase Event shall be deemed to have occurred on such Net Worth Measurement Date. (i) Subject to paragraph (e) of this Section 1009, in the event that a Special Repurchase Event is deemed to have occurred, each Holder of the Securities then outstanding shall have the right to require the Company to repurchase all or any part of such Holder's Securities on the date (the "Repurchase Date") that is 35 Business Days after the date such Special Purchase Event is deemed to have occurred, at a price equal to 100% of the principal amount thereof plus accrued interest to, but excluding, the date of repurchase (the "Repurchase Price"). (ii) Within 15 Business Days after the occurrence of a Special Repurchase Event, the Company shall mail a written notice of such occurrence by first-class mail to the Trustee, the Paying Agent and to each Holder (and to beneficial owners as required by applicable law) and shall cause a copy of such notice to be published in The Wall Street Journal or another daily newspaper of national circulation. The notice shall state: (1) the date of such Special Repurchase Event and, briefly, the events causing such Special Repurchase Event; (2) the date by which the notice required by this paragraph (ii) must be given; (3) the Repurchase Date; (4) the Repurchase Price; (5) the name and address of the Paying Agent; (6) the procedures the Holder must follow to exercise rights under this Section 1009; and (7) the procedures for withdrawing a Repurchase Election Notice (as defined below). (iii) A Holder may exercise its rights specified in Section 1009(c)(i) upon delivery of a written notice of repurchase (a "Repurchase Election Notice") to the Paying Agent at any time prior to the close of business on the Repurchase Date, stating: (1) the certificate number of the Security which the Holder will deliver to be repurchased; (2) the portion of the principal amount of the Security which the Holder will deliver to be repurchased, which portion must be $1,000 or an integral multiple thereof; and (3) that such Security shall be repurchased pursuant to the terms and conditions specified in this Section 1009. The delivery of such Security to the Paying Agent prior to, on or after the Repurchase Date (together with all necessary endorsements) at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Repurchase Price therefor; provided, however, that such Repurchase Price shall be so paid pursuant to this Section 1009 only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Repurchase Election Notice. The Company shall repurchase from the Holder thereof, pursuant to this Section 1009, a portion of a Security 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 Security also apply to the repurchase of such portion of such Security. Any repurchase by the Company contemplated pursuant to the provisions of this Section 1009 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Repurchase Date and the time of delivery of the Security. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Repurchase Election Notice contemplated by this Section 1009(c)(iii) shall have the right to withdraw such Repurchase Election Notice at any time prior to the close of business on the Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with paragraph (c)(iv). (iv) A Repurchase Election Notice may be withdrawn by means of a written notice of withdrawal delivered to the office of the Paying Agent at any time prior to the close of business on the Repurchase Date to which it relates specifying: (1) the certificate number of the Security in respect of which such notice of withdrawal is being submitted, (2) the principal amount of the Security with respect to which such notice of withdrawal is being submitted, and (3) the principal amount, if any, of such Security which remains subject to the original Repurchase Election Notice and which has been or will be delivered for repurchase by the Company. (v) On or before the Business Day following a Repurchase Date, the Company shall deposit with the Trustee or with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 1003) an amount of money or, if permitted by the terms hereof, securities sufficient to pay the aggregate Repurchase Price of all the Securities or portions thereof which are to be repurchased as of such Repurchase Date. (vi) Any Security which is to be repurchased only in part shall be surrendered at the office of the Paying Agent (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder's attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Security so surrendered which is not repurchased. (vii) In connection with any offer to repurchase or repurchase of Securities under this Section 1009, the Company shall comply with all applicable federal and state securities laws so as to permit the rights and obligations under this Section 1009 to be exercised in the time and in the manner specified in this Section 1009. (viii) The Trustee and the Paying Agent shall return to the Company any cash, together with interest on such cash, if any, held by them for the payment of a Repurchase Price in respect of cash that remains unclaimed as provided in Section 1003. (ix) Upon receipt by the Paying Agent of the Repurchase Election Notice specified in Section 1009 (c)(ii), the Holder of the Security in respect of which such Repurchase Election Notice was given shall (unless such Repurchase Election Notice is withdrawn as specified in paragraph (c) (iv)) thereafter be entitled to receive solely the Repurchase Price with respect to such Security. Such Repurchase Price shall be paid to such Holder promptly following the later of (x) the Repurchase Date with respect to such Security (provided the conditions in Section 1009(c)(iii) have been satisfied) and (y) the time of delivery of such Security to the Paying Agent by the Holder thereof in the manner required by Section 1009 (c) (iii). (d) For purposes of this Section 1009, the following terms shall have the meanings set forth below:
Appears in 2 contracts
Samples: Indenture (Baker Hughes Inc), Indenture (Baker Hughes Inc)
Repurchase of Securities at Option of the Holder. (a) If (i) SECTION 1501 General The Company may be required to repurchase 2020 Debentures in accordance with their terms and in accordance with this Article. 2020 Debentures shall be purchased by the Company incurs any New Debt and, as under the paragraph "Repurchase by the Company at the Option of the last day Holder" of the fiscal quarter in which such New Debt is incurred2020 Debentures on May 24, the Ratio of Debt to Consolidated Capitalization is greater than .65 2003, May 24, 2008 and the Cash Flow Coverage Ratio is less than 1.75 and May 24, 2013 (ii) as of the last day of the second full fiscal quarter commencing after the date of such incurrence (the each, a "Leverage Measurement Repurchase Date"), at the Ratio of Debt to Consolidated Capitalization is greater than .65 and the Cash Flow Coverage Ratio is less than 1.75repurchase price specified therein (each, a Special Repurchase Event shall be deemed to have occurred on such Leverage Measurement Date.
(b) If (i) the Consolidated Tangible Net Worth of the Company is less than the Minimum Tangible Net Worth as of the end of any fiscal year and (ii) as of the last day of the second succeeding fiscal quarter (the "Net Worth Measurement Date"), the Consolidated Tangible Net Worth is less than the Minimum Tangible Net Worth, a Special Repurchase Event shall be deemed to have occurred on such Net Worth Measurement Date.
(i) Subject to paragraph (e) of this Section 1009, in the event that a Special Repurchase Event is deemed to have occurred, each Holder of the Securities then outstanding shall have the right to require the Company to repurchase all or any part of such Holder's Securities on the date (the "Repurchase Date") that is 35 Business Days after the date such Special Purchase Event is deemed to have occurred, at a price equal to 100% of the principal amount thereof plus accrued interest to, but excluding, the date of repurchase (the "Repurchase Price").
(ii) Within 15 Business Days after , at the occurrence option of a Special Repurchase Eventthe Holder thereof, the Company shall mail a written notice of such occurrence by first-class mail to the Trustee, the Paying Agent and to each Holder (and to beneficial owners as required by applicable law) and shall cause a copy of such notice to be published in The Wall Street Journal or another daily newspaper of national circulation. The notice shall stateupon:
(1) the date of such Special Repurchase Event and, briefly, the events causing such Special Repurchase Event;
(2) the date by which the notice required by this paragraph (ii) must be given;
(3) the Repurchase Date;
(4) the Repurchase Price;
(5) the name and address of delivery to the Paying Agent;
(6) the procedures , by the Holder must follow to exercise rights under this Section 1009; and
(7) the procedures for withdrawing a Repurchase Election Notice (as defined below).
(iii) A Holder may exercise its rights specified in Section 1009(c)(i) upon delivery of a written notice of repurchase purchase (a "Repurchase Election Notice") to the Paying Agent at any time from the opening of business on the date that is 20 Business Days prior to a Repurchase Date until the close of business on the such Repurchase Date, Date stating:
(1A) the certificate number of the Security 2020 Debenture which the Holder will deliver to be repurchased;,
(2B) the portion of the principal amount Principal Amount of the Security 2020 Debenture which the Holder will deliver to be repurchased, which portion must be $1,000 or an integral multiple thereof; and,
(3C) that such Security 2020 Debenture shall be repurchased purchased as of the Repurchase Date pursuant to the terms and conditions specified under the paragraph "Repurchase by the Company at the Option of the Holder" of the 2020 Debentures and in this Indenture,
(D) in the event that the Company elects, pursuant to Section 1009. The 1502 hereof, to pay the Repurchase Price to be paid as of such Repurchase Date, in whole or in part, in Ordinary Shares but such portion of the Repurchase Price shall ultimately be payable to such Holder entirely in cash because any of the conditions to payment of the Repurchase Price in Ordinary Shares is not satisfied prior to the close of business on such Repurchase Date, as set forth in Section 1503 hereof, whether such Holder elects (i) to withdraw such Repurchase Notice as to some or all of the 2020 Debentures to which such Repurchase Notice relates (stating the Principal Amount at Maturity and certificate numbers of the 2020 Debentures as to which such withdrawal shall relate), or (ii) to receive cash in respect of the entire Repurchase Price for all 2020 Debentures (or portions thereof) to which such Repurchase Price relates, and
(2) delivery of such Security 2020 Debenture to the Paying Agent prior to, on or after the Repurchase Date (together with all necessary endorsements) at the offices of the Paying Agent shall be Agent, such delivery being a condition to the receipt by the Holder of the Repurchase Price therefor; provided, however, that such Repurchase Price shall be so paid pursuant to this Section 1009 Article Fifteen only if the Security 2020 Debenture so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Repurchase Election Notice. If a Holder, in such Holder's Repurchase Notice and in any written notice of withdrawal delivered by such Holder pursuant to the terms of Section 1509 hereof, fails to indicate such Holder's choice with respect to the election set forth in clause (D) of Section 1501(1), such Holder shall be deemed to have elected to receive cash in respect of the Repurchase Price for all 2020 Debentures subject to the Repurchase Notice in the circumstances set forth in such clause (D). The Company shall repurchase purchase from the Holder thereof, pursuant to this Section 1009Article Fifteen, a portion of a Security 2020 Debenture if the principal amount Principal Amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the repurchase purchase of all of a Security 2020 Debenture also apply to the repurchase purchase of such portion of such Security2020 Debenture. Any repurchase purchase by the Company contemplated pursuant to the provisions of this Section 1009 Article Fifteen shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Repurchase Date and the time of delivery of the Security. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Repurchase Election Notice contemplated by this Section 1009(c)(iii) 1501 shall have the right to withdraw such Repurchase Election Notice at any time prior to the close of business on the Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with paragraph (c)(iv).
(iv) A Section 1509. The Paying Agent shall promptly notify the Company of the receipt by it of any Repurchase Election Notice may be withdrawn by means of a or written notice of withdrawal delivered thereof. SECTION 1502 The Company's Right to Elect Manner of Payment of Repurchase Price
(a) The Repurchase Price of 2020 Debentures in respect of which a Repurchase Notice pursuant to Section 1501 has been given, or a specified percentage thereof, will be paid by the Company, at the election of the Company, with cash or Ordinary Shares or in any combination of cash and Ordinary Shares, subject to the office conditions set forth in Section 1502 and 1503 hereof. The Company shall designate, in the Company Notice delivered pursuant to Section 1505 hereof, whether the Company will purchase the 2020 Debentures for cash or Ordinary Shares, or, if a combination thereof, the percentages of the Paying Agent at Repurchase Price of 2020 Debentures in respect of which it will pay in cash and Ordinary Shares; provided that the Company will pay cash for fractional interests in Ordinary Shares. For purposes of determining the existence of potential fractional interests, all 2020 Debentures subject to purchase by the Company held by a Holder shall be considered together (no matter how many separate certificates are to be presented). Each Holder whose 2020 Debentures are purchased pursuant to this Article Fifteen shall receive the same percentage of cash or Ordinary Shares in payment of the Repurchase Price for such 2020 Debentures, except (i) as provided in Section 1504 with regard to the payment of cash in lieu of fractional Ordinary Shares and (ii) in the event that the Company is unable to purchase the 2020 Debentures of a Holder or Holders for Ordinary Shares because any time necessary qualifications or registrations of the Ordinary Shares under applicable state securities laws cannot be obtained, the Company may purchase the 2020 Debentures of such Holder or Holders for cash. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders except pursuant to this Section 1502 or pursuant to Section 1504 in the event of a failure to satisfy, prior to the close of business on the Repurchase Date Date, any condition to which it relates specifying:
(1) the certificate number payment of the Security Repurchase Price, in respect of which such notice of withdrawal is being submitted,
(2) the principal amount of the Security with respect to which such notice of withdrawal is being submittedwhole or in part, and
(3) the principal amount, if any, of such Security which remains subject to the original Repurchase Election Notice and which has been or will be delivered for repurchase by the Company.
(v) On or in Ordinary Shares. At least three Business Days before the Business Day following a Repurchase Company Notice Date, the Company shall deposit with deliver an Officers' Certificate to the Trustee or with specifying:
(i) the Paying Agent manner of payment selected by the Company,
(or, ii) the information required by Section 1505,
(iii) if the Company elects to pay the Repurchase Price, or a Subsidiary or an Affiliate specified percentage thereof, in Ordinary Shares, that the conditions to such manner of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided payment set forth in Section 10031504 have been or will be complied with, and
(iv) an amount whether the Company desires the Trustee to give the Company Notice required by Section 1505. SECTION 1503 Purchase with Cash On each Repurchase Date, at the option of money orthe Company, if permitted the Repurchase Price of 2020 Debentures in respect of which a Repurchase Notice pursuant to Section 1501 has been given, or a specified percentage thereof, may be paid by the terms hereof, securities sufficient Company with cash equal to pay the aggregate Repurchase Price of all the Securities or portions thereof which are to be repurchased as of such Repurchase Date.
(vi) Any Security which is to be repurchased only in part shall be surrendered at the office of the Paying Agent (with, if 2020 Debentures. If the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory elects to the Company and the Trustee duly executed by, the Holder thereof or such Holder's attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Security so surrendered which is not repurchased.
(vii) In connection purchase 2020 Debentures with any offer to repurchase or repurchase of Securities under this Section 1009cash, the Company shall comply with all applicable federal and state securities laws so as to permit the rights and obligations under this Section 1009 to be exercised in the time and in the manner specified in this Section 1009.
(viii) The Trustee and the Paying Agent shall return to the Company any cashNotice, together with interest on such cash, if any, held by them for the payment of a Repurchase Price in respect of cash that remains unclaimed as provided in Section 1003.
1505, shall be sent to Holders (ixand to beneficial owners as required by applicable law) Upon receipt not less than 20 Business Days prior to such Purchase Date (the "Company Notice Date"). SECTION 1504 Payment by Issuance of Ordinary Shares On each Repurchase Date, at the Paying Agent option of the Repurchase Election Notice specified in Section 1009 (c)(ii)Company, the Holder Repurchase Price of the Security 2020 Debentures in respect of which a Repurchase Notice pursuant to Section 1501 has been given, or a specified percentage thereof, may be paid by the Company by the issuance of a number of Ordinary Shares equal to the quotient obtained by dividing (i) the amount of cash to which the Holders would have been entitled had the Company elected to pay all or such Repurchase Election Notice was given shall (unless such Repurchase Election Notice is withdrawn specified percentage, as specified in paragraph (c) (iv)) thereafter be entitled to receive solely the case may be, of the Repurchase Price with respect of such 2020 Debentures in cash by (ii) the Market Price of an Ordinary Share, subject to such Securitythe next succeeding paragraph. Such The Company will not issue a fractional Ordinary Share in payment of the Repurchase Price Price. Instead the Company will pay cash for the current market value of the fractional share. The current market value of a fraction of an Ordinary Share shall be paid to determined by multiplying the Market Price by such Holder promptly following fraction and rounding the later of (x) the Repurchase Date with respect to such Security (provided the conditions in Section 1009(c)(iii) have been satisfied) and (y) the time of delivery of such Security product to the Paying Agent by the nearest whole cent with one half cent being rounded upwards. It is understood that if a Holder thereof in the manner required by Section 1009 (c) (iii).
(d) For purposes of this Section 1009, the following terms shall elects to have the meanings set forth below:more than one 2020
Appears in 1 contract
Samples: Third Supplemental Indenture (Transocean Sedco Forex Inc)
Repurchase of Securities at Option of the Holder. (aA) If At the option of the Holder thereof, the Securities (ior portions thereof that are integral multiples of $1,000 in principal amount) shall be repurchased by the Company incurs any New Debt and, as pursuant to PARAGRAPH 8 of the last day of the fiscal quarter in which such New Debt is incurredSecurities on April 15, the Ratio of Debt to Consolidated Capitalization is greater than .65 and the Cash Flow Coverage Ratio is less than 1.75 and (ii) as of the last day of the second full fiscal quarter commencing after the date of such incurrence 2011 (the "Leverage Measurement DateOPTIONAL REPURCHASE DATE"), the Ratio of Debt to Consolidated Capitalization is greater than .65 and the Cash Flow Coverage Ratio is less than 1.75, a Special Repurchase Event shall be deemed to have occurred on such Leverage Measurement Date.
(b) If (i) the Consolidated Tangible Net Worth of the Company is less than the Minimum Tangible Net Worth as of the end of any fiscal year and (ii) as of the last day of the second succeeding fiscal quarter (the "Net Worth Measurement Date"), the Consolidated Tangible Net Worth is less than the Minimum Tangible Net Worth, a Special Repurchase Event shall be deemed to have occurred on such Net Worth Measurement Date.
(i) Subject to paragraph (e) of this Section 1009, in the event that a Special Repurchase Event is deemed to have occurred, each Holder of the Securities then outstanding shall have the right to require the Company to repurchase all or any part of such Holder's Securities on the date (the "Repurchase Date") that is 35 Business Days after the date such Special Purchase Event is deemed to have occurred, at a price repurchase price, payable in cash, equal to one hundred percent (100% %) of the principal amount thereof of the Securities (or such portions thereof) to be so repurchased (the "OPTIONAL REPURCHASE PRICE"), plus accrued interest 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 repurchase business on the date that is twenty (20) Business Days prior to the "Optional Repurchase Price").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) the 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) Within 15 Business Days 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, at any time after delivery of such Repurchase Notice, of such Securities (together with all necessary endorsements), such delivery being a condition to receipt by the occurrence Holder of a Special the Optional Repurchase EventPrice 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 mail 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 such occurrence by first-class mail withdrawal to the Trustee, 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 Holder (and to beneficial owners owner as required by applicable law) and shall cause a copy of such notice to be published in The Wall Street Journal or another daily newspaper of national circulation. The Such notice shall state:
(1i) the date of such Special Optional Repurchase Event andPrice plus accrued and unpaid interest, brieflyif any, to, but excluding, the events causing such Special Optional Repurchase EventDate and the Conversion Rate;
(2ii) the date names and addresses of the Paying Agent and the Conversion Agent;
(iii) that Securities with respect to which a Repurchase Notice is given by which 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 notice required by this paragraph payment of such Optional Repurchase Price or in accrued and unpaid interest, if any, payable as herein provided upon Repurchase at Holder's Option;
(iiiv) that Securities (together with any necessary endorsements) must be givensurrendered 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;
(3v) 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;
(4) the Repurchase Price;
(5) the name and address of the Paying Agent;
(6vi) the procedures the Holder must follow to exercise rights under this Section 1009; andSECTION 3.08 (including the name and address of the Paying Agent) and a brief description of those rights;
(7vii) that a Holder will be entitled to withdraw its election in the procedures for withdrawing a Repurchase Election Notice if the Company (if acting as defined below).
(iiiits own Paying Agent) A Holder may exercise its rights specified in Section 1009(c)(i) upon delivery of a written notice of repurchase (a "Repurchase Election Notice") to 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, stating:
or such longer period as may be required by law, a letter or facsimile transmission (1receipt 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 number(s) of the Security which the Holder will deliver such Securities to be repurchased;
so withdrawn, if such Securities are in certificated form, (2) the portion of the principal amount of the Security which the Holder will deliver to be repurchased, which portion must be $1,000 or an integral multiple thereof; and
(3) that such Security shall be repurchased pursuant to the terms and conditions specified in this Section 1009. The delivery of such Security to the Paying Agent prior to, on or after the Repurchase Date (together with all necessary endorsements) at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Repurchase Price therefor; provided, however, that such Repurchase Price shall be so paid pursuant to this Section 1009 only if the Security so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Repurchase Election Notice. The Company shall repurchase from the Holder thereof, pursuant to this Section 1009, a portion of a Security 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 Security also apply to the repurchase of such portion of such Security. Any repurchase by the Company contemplated pursuant to the provisions of this Section 1009 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Repurchase Date and the time of delivery of the Security. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Repurchase Election Notice contemplated by this Section 1009(c)(iii) shall have the right to withdraw such Repurchase Election Notice at any time prior to the close of business on the Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with paragraph (c)(iv).
(iv) A Repurchase Election Notice may be withdrawn by means of a written notice of withdrawal delivered to the office of the Paying Agent at any time prior to the close of business on the Repurchase Date to which it relates specifying:
(1) the certificate number of the Security in respect of which such notice of withdrawal is being submitted,
(2IV) the principal amount of the Security with respect Securities of such Holder to be so withdrawn, which such notice of withdrawal is being submitted, and
amount must be $1,000 or integral multiples thereof and (3V) the principal amount, if any, of the Securities of such Security which remains Holder that remain subject to the original Repurchase Election 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 which has been 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 will 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 delivered for repurchase 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 purchase such Holder's Securities pursuant to a Repurchase at Holder's Option.
(vC) On Subject to the provisions of this SECTION 3.08, the Company shall pay, or before cause to be paid, the Optional Repurchase Price, plus accrued and unpaid interest, 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 following a 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 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 Optional Repurchase Date, the Company shall deposit with the Trustee or with the a Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting as the its own Paying Agent, shall segregate and hold in trust as provided in Section 1003accordance with SECTION 2.04) an amount of money ormoney, if permitted by in funds immediately available on the terms hereofOptional Repurchase Date, securities sufficient to pay the aggregate Optional Repurchase Price Price, plus accrued and unpaid interest, if any, to, but excluding, the Optional Repurchase Date, of all of the Securities or portions thereof which that are to be repurchased 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 of such Repurchase Datesoon as practicable, any money not required for that purpose.
(viE) 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 which that is to be repurchased submitted for Repurchase at Holder's Option only in part shall be surrendered at the office of the Paying Agent delivered pursuant to this SECTION 3.08 (with, if the Company or the Trustee 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 thereof or such Holder's its attorney duly authorized in writing) , with a medallion guarantee), and the Company shall execute execute, and the Trustee shall shall, upon receipt of a Company Order, authenticate and deliver make available for delivery to the Holder of such Security, without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder Holder, of the same tenor and in aggregate principal amount equal to, and in exchange for, to the portion of the principal amount of the such Security so surrendered which is not repurchasedsubmitted for Repurchase at Holder's Option.
(viiI) In connection with Notwithstanding anything herein to the contrary, there shall be no purchase of any offer Securities pursuant to repurchase this SECTION 3.08 if there has occurred (prior to, on or repurchase after, as the case may be, the giving, by the Holders of such Securities, of the required Repurchase Notice) and 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 provide the applicable Optional Repurchase Notice). The Paying Agent will promptly return to the respective Holders thereof any Securities under this Section 1009held 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 Optional Repurchase Date is determined to constitute a tender offer, the Company shall comply with all applicable federal tender offer rules under the Exchange Act, including Rule 13e-4 and state securities laws so as to permit Regulation 14E thereunder, and with all other applicable laws, and will file a Schedule TO or any other schedules required under the rights and obligations under this Section 1009 to be exercised in the time and in the manner specified in this Section 1009Exchange Act or any other applicable laws.
(viii) The Trustee and the Paying Agent shall return to the Company any cash, together with interest on such cash, if any, held by them for the payment of a Repurchase Price in respect of cash that remains unclaimed as provided in Section 1003.
(ix) Upon receipt by the Paying Agent of the Repurchase Election Notice specified in Section 1009 (c)(ii), the Holder of the Security in respect of which such Repurchase Election Notice was given shall (unless such Repurchase Election Notice is withdrawn as specified in paragraph (c) (iv)) thereafter be entitled to receive solely the Repurchase Price with respect to such Security. Such Repurchase Price shall be paid to such Holder promptly following the later of (x) the Repurchase Date with respect to such Security (provided the conditions in Section 1009(c)(iii) have been satisfied) and (y) the time of delivery of such Security to the Paying Agent by the Holder thereof in the manner required by Section 1009 (c) (iii).
(d) For purposes of this Section 1009, the following terms shall have the meanings set forth below:
Appears in 1 contract
Samples: Indenture (LDK Solar Co., Ltd.)
Repurchase of Securities at Option of the Holder. (a) If (i) Section 1501 General The Company may be required to repurchase 2021 Debentures in accordance with their terms and in accordance with this Article. 2021 Debentures shall be purchased by the Company incurs any New Debt and, as under the paragraph "Repurchase by the Company at the Option of the last day Holder" of the fiscal quarter in which such New Debt is incurred2021 Debentures on May 15, the Ratio of Debt to Consolidated Capitalization is greater than .65 2006, May 15, 2011 and the Cash Flow Coverage Ratio is less than 1.75 and May 15, 2016 (ii) as of the last day of the second full fiscal quarter commencing after the date of such incurrence (the each, a "Leverage Measurement Repurchase Date"), at the Ratio of Debt to Consolidated Capitalization is greater than .65 and the Cash Flow Coverage Ratio is less than 1.75, a Special Repurchase Event shall be deemed to have occurred on such Leverage Measurement Date.
(b) If (i) the Consolidated Tangible Net Worth of the Company is less than the Minimum Tangible Net Worth as of the end of any fiscal year and (ii) as of the last day of the second succeeding fiscal quarter (the "Net Worth Measurement Date"), the Consolidated Tangible Net Worth is less than the Minimum Tangible Net Worth, a Special Repurchase Event shall be deemed to have occurred on such Net Worth Measurement Date.
(i) Subject to paragraph (e) of this Section 1009, in the event that a Special Repurchase Event is deemed to have occurred, each Holder of the Securities then outstanding shall have the right to require the Company to repurchase all or any part of such Holder's Securities on the date (the "Repurchase Date") that is 35 Business Days after the date such Special Purchase Event is deemed to have occurred, at a price equal to 100% of the principal amount thereof plus accrued interest to, but excluding, the date of repurchase specified therein (the "Repurchase Price").
(ii) Within 15 Business Days after , at the occurrence option of a Special Repurchase Eventthe Holder thereof, the Company shall mail a written notice of such occurrence by first-class mail to the Trustee, the Paying Agent and to each Holder (and to beneficial owners as required by applicable law) and shall cause a copy of such notice to be published in The Wall Street Journal or another daily newspaper of national circulation. The notice shall stateupon:
(1) the date of such Special Repurchase Event and, briefly, the events causing such Special Repurchase Event;
(2) the date by which the notice required by this paragraph (ii) must be given;
(3) the Repurchase Date;
(4) the Repurchase Price;
(5) the name and address of delivery to the Paying Agent;
(6) the procedures , by the Holder must follow to exercise rights under this Section 1009; and
(7) the procedures for withdrawing a Repurchase Election Notice (as defined below).
(iii) A Holder may exercise its rights specified in Section 1009(c)(i) upon delivery of a written notice of repurchase purchase (a "Repurchase Election Notice") to the Paying Agent at any time from the opening of business on the date that is 20 Business Days prior to a Repurchase Date until the close of business on the such Repurchase Date, Date stating:
(1A) the certificate number of the Security 2021 Debenture which the Holder will deliver to be repurchased;repurchased or if any of the 2021 Debentures is in the form of a Global Security, then a beneficial owner of a 2021 Debenture shall comply with the procedures of the Depositary applicable to the repurchase of a Global Security,
(2B) the portion of the principal amount Principal Amount of the Security 2021 Debenture which the Holder will deliver to be repurchased, which portion must be $1,000 or an integral multiple thereof; and,
(3C) that such Security 2021 Debenture shall be repurchased purchased as of the Repurchase Date pursuant to the terms and conditions specified under the caption "Repurchase by the Company at the Option of the Holder" of the 2021 Debentures and in this Indenture,
(D) in the event that the Company elects, pursuant to Section 1009. The 1502 hereof, to pay the Repurchase Price to be paid as of such Repurchase Date, in whole or in part, in Ordinary Shares but such portion of the Repurchase Price shall ultimately be payable to such Holder entirely in cash because any of the conditions to payment of the Repurchase Price in Ordinary Shares is not satisfied prior to the close of business on such Repurchase Date, as set forth in Section 1503 hereof, whether such Holder elects (i) to withdraw such Repurchase Notice as to some or all of the 2021 Debentures to which such Repurchase Notice relates (stating the Principal Amount at Maturity and certificate numbers of the 2021 Debentures as to which such withdrawal shall relate or if certificated 2021 Debentures have not been issued, a beneficial owner of a 2021 Debenture shall comply with the procedures of the Depositary applicable to the withdrawal of a Repurchase Notice), or (ii) to receive cash in respect of the entire Repurchase Price for all 2021 Debentures (or portions thereof) to which such Repurchase Notice relates, and
(2) delivery of such Security 2021 Debenture to the Paying Agent prior to, on or after the Repurchase Date (together with all necessary endorsements) at the offices of the Paying Agent shall be Agent, such delivery being a condition to the receipt by the Holder of the Repurchase Price therefor; provided, however, that such Repurchase Price shall be so paid pursuant to this Section 1009 Article Fifteen only if the Security 2021 Debenture so delivered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Repurchase Election Notice. If a Holder, in such Holder's Repurchase Notice and in any written notice of withdrawal delivered by such Holder pursuant to the terms of Section 1509 hereof, fails to indicate such Holder's choice with respect to the election set forth in clause (D) of Section 1501(1), such Holder shall be deemed to have elected to receive cash in respect of the Repurchase Price for all 2021 Debentures subject to the Repurchase Notice in the circumstances set forth in such clause (D). The Company shall repurchase purchase from the Holder thereof, pursuant to this Section 1009Article Fifteen, a portion of a Security 2021 Debenture if the principal amount Principal Amount of such portion is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that apply to the repurchase purchase of all of a Security 2021 Debenture also apply to the repurchase purchase of such portion of such Security2021 Debenture. Any repurchase purchase by the Company contemplated pursuant to the provisions of this Section 1009 Article Fifteen shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Repurchase Date and the time of delivery of the Security2021 Debenture. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Repurchase Election Notice contemplated by this Section 1009(c)(iii) 1501 shall have the right to withdraw such Repurchase Election Notice at any time prior to the close of business on the Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with paragraph (c)(iv).
(iv) A Section 1509. The Paying Agent shall promptly notify the Company of the receipt by it of any Repurchase Election Notice may be withdrawn by means of a or written notice of withdrawal delivered thereof. Section 1502 The Company's Right to Elect Manner of Payment of Repurchase Price
(a) The Repurchase Price of 2021 Debentures or a specified portion thereof in respect of which a Repurchase Notice pursuant to Section 1501 has been given will be paid by the Company, at the election of the Company, with cash or Ordinary Shares or in any combination of cash and Ordinary Shares, subject to the office conditions set forth in Section 1503 and 1504 hereof. The Company shall designate, in the Company Notice delivered pursuant to Section 1505 hereof, whether the Company will purchase the 2021 Debentures for cash or Ordinary Shares, or, if a combination thereof, the percentages of the Paying Agent at Repurchase Price of 2021 Debentures in respect of which it will pay in cash and Ordinary Shares; provided that the Company will pay cash for fractional interests in Ordinary Shares. For purposes of determining the existence of potential fractional interests, all 2021 Debentures subject to purchase by the Company held by a Holder shall be considered together (no matter how many separate certificates are to be presented). Each Holder whose 2021 Debentures are purchased pursuant to this Article Fifteen shall receive the same percentage of cash or Ordinary Shares in payment of the Repurchase Price for such 2021 Debentures, except (i) as provided in Section 1504 with regard to the payment of cash in lieu of fractional Ordinary Shares and (ii) in the event that the Company is unable to purchase the 2021 Debentures of a Holder or Holders for Ordinary Shares because any time necessary qualifications or registrations of the Ordinary Shares under applicable state securities laws cannot be obtained, the Company may purchase the 2021 Debentures of such Holder or Holders for cash. The Company may not change its election with respect to the consideration (or components or percentages of components thereof) to be paid once the Company has given its Company Notice to Holders except pursuant to this Section 1502 or pursuant to Section 1504 in the event of a failure to satisfy, prior to the close of business on the Repurchase Date Date, any condition to which it relates specifying:
(1) the certificate number payment of the Security Repurchase Price, in respect of which such notice of withdrawal is being submitted,
(2) the principal amount of the Security with respect to which such notice of withdrawal is being submittedwhole or in part, and
(3) the principal amount, if any, of such Security which remains subject to the original Repurchase Election Notice and which has been or will be delivered for repurchase by the Company.
(v) On or in Ordinary Shares. At least three Business Days before the Business Day following a Repurchase Company Notice Date, the Company shall deposit with deliver an Officers' Certificate to the Trustee or with specifying:
(i) the Paying Agent manner of payment selected by the Company,
(or, ii) the information required by Section 1505,
(iii) if the Company or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 1003) an amount of money or, if permitted by the terms hereof, securities sufficient elects to pay the aggregate Repurchase Price of all the Securities or portions thereof which are to be repurchased as of such Repurchase Date.
(vi) Any Security which is to be repurchased only in part shall be surrendered at the office of the Paying Agent (with, if the Company or the Trustee so requires, due endorsement byPrice, or a written instrument specified percentage thereof, in Ordinary Shares, that the conditions to such manner of transfer payment set forth in form satisfactory to Section 1504 have been or will be complied with, and
(iv) whether the Company and desires the Trustee duly executed by, the Holder thereof or such Holder's attorney duly authorized in writing) and to give the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Security so surrendered which is not repurchased.
(vii) In connection with any offer to repurchase or repurchase of Securities under this Section 1009, the Company shall comply with all applicable federal and state securities laws so as to permit the rights and obligations under this Section 1009 to be exercised in the time and in the manner specified in this Section 1009.
(viii) The Trustee and the Paying Agent shall return to the Company any cash, together with interest on such cash, if any, held by them for the payment of a Repurchase Price in respect of cash that remains unclaimed as provided in Section 1003.
(ix) Upon receipt by the Paying Agent of the Repurchase Election Notice specified in Section 1009 (c)(ii), the Holder of the Security in respect of which such Repurchase Election Notice was given shall (unless such Repurchase Election Notice is withdrawn as specified in paragraph (c) (iv)) thereafter be entitled to receive solely the Repurchase Price with respect to such Security. Such Repurchase Price shall be paid to such Holder promptly following the later of (x) the Repurchase Date with respect to such Security (provided the conditions in Section 1009(c)(iii) have been satisfied) and (y) the time of delivery of such Security to the Paying Agent by the Holder thereof in the manner required by Section 1009 (c) (iii)1505.
(d) For purposes of this Section 1009, the following terms shall have the meanings set forth below:
Appears in 1 contract
Samples: Fourth Supplemental Indenture (Transocean Sedco Forex Inc)
Repurchase of Securities at Option of the Holder. (aA) If At the option of the Holder thereof, Securities (ior portions thereof that are integral multiples of $1,000 in principal amount) shall be repurchased by the Company incurs any New Debt and, as of the last day of the fiscal quarter in which such New Debt is incurred, the Ratio of Debt to Consolidated Capitalization is greater than .65 and the Cash Flow Coverage Ratio is less than 1.75 and (ii) as of the last day of the second full fiscal quarter commencing after the date of such incurrence (the "Leverage Measurement Date"), the Ratio of Debt to Consolidated Capitalization is greater than .65 and the Cash Flow Coverage Ratio is less than 1.75, a Special Repurchase Event shall be deemed to have occurred on such Leverage Measurement Date.
(b) If (i) the Consolidated Tangible Net Worth of the Company is less than the Minimum Tangible Net Worth as of the end of any fiscal year and (ii) as of the last day of the second succeeding fiscal quarter (the "Net Worth Measurement Date"), the Consolidated Tangible Net Worth is less than the Minimum Tangible Net Worth, a Special Repurchase Event shall be deemed to have occurred on such Net Worth Measurement Date.
(i) Subject pursuant to paragraph (e) of this Section 1009, in the event that a Special Repurchase Event is deemed to have occurred, each Holder 8 of the Securities then outstanding shall have the right to require the Company to repurchase all or any part of such Holder's Securities on the date May 31, 2010, May 31, 2016 and May 31, 2021 (the "each, an “Option Repurchase Date") that is 35 Business Days after the date such Special Purchase Event is deemed to have occurred”), at a price repurchase price, payable in cash, equal to one hundred percent (100% %) of the principal amount thereof of the Securities (or such portions thereof) to be so repurchased (the “Option Repurchase Price”), plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the applicable Option 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 Option Repurchase Notice (as defined below), by such Holder, at any time from 9:00 a.m., New York City time, on the date that is twenty (20) Business Days prior to the applicable Option Repurchase Date until 5:00 p.m., New York City time, on the third (3rd) Business Day immediately preceding the applicable Option Repurchase Date, of repurchase a Repurchase Notice, in the form set forth in the Securities (or any other form of written notice delivered in good faith and substantially similar thereto), duly completed and signed, with appropriate signature guarantee, stating:
(a) the "certificate number(s) of the Securities which the Holder will deliver to be repurchased, if such Securities are in the form of Physical Securities;
(b) the principal amount of Securities to be repurchased, which must be $1,000 or an integral multiple thereof; and
(c) that such principal amount of Securities are to be repurchased as of the applicable Option Repurchase Price").Date pursuant to the terms and conditions specified in paragraph 8 of the Securities and in this Indenture; and
(ii) Within 15 Business Days 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 Option Repurchase Notice, at any time after delivery of such Repurchase Notice, of such Securities (such Securities to conform in all material respects to the occurrence description thereof in the related Option Repurchase Notice), together with all necessary endorsements, such delivery being a condition to receipt by the Holder of a Special the Option Repurchase EventPrice therefor plus accrued and unpaid interest and Additional Interest, if any, payable as herein provided upon Repurchase at Holder’s Option; If such Securities are held in book-entry form through the Depositary, the Repurchase Notice shall comply with 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 mail be entitled, upon request, to receive 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 Option Repurchase Notice shall have the right to withdraw such Repurchase Notice by delivery, at any time prior to 5:00 p.m., New York City time, on the third (3rd) Business Day immediately preceding the applicable Option Repurchase Date, of a written notice of such occurrence by first-class mail withdrawal to the Trustee, 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 and 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 “Option Repurchase Notice”) on a date not less than twenty (20) Business Days prior to each Holder (Option Repurchase Date to all Holders at their addresses shown in the register of the Registrar and to beneficial owners as required by applicable law) and shall cause a copy of such notice to be published law or by electronic transmission for Securities that are held in The Wall Street Journal or another daily newspaper of national circulationbook-entry form through the Depositary. The Such notice shall state:
(1i) the date of Option Repurchase Price plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, such Special Option Repurchase Event and, briefly, Date and the events causing such Special Repurchase EventConversion Rate;
(2ii) the date by which the notice required by this paragraph (ii) must be given;
(3) the Repurchase Date;
(4) the Repurchase Price;
(5) the name names and address addresses of the Paying Agent and the Conversion Agent;
(6iii) that Securities with respect to which a Repurchase Notice is given by a Holder may be converted pursuant to 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 Option Repurchase Price or in accrued and unpaid interest or Additional Interest, if any, payable as herein provided upon Repurchase at Holder’s Option;
(iv) that Securities must be surrendered (together with any necessary endorsements) to the Paying Agent to collect payment of the Option Repurchase Price plus accrued and unpaid interest and Additional Interest, if any, payable as herein provided upon Repurchase at Holder’s Option;
(v) that the Option Repurchase Price, plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, such Option 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 more than three (3) Business Days, following the later of such Option Repurchase Date or the time of delivery of the Security as described in clause (iv) above;
(vi) the procedures the Holder must follow to exercise rights under this Section 1009; and3.08 (including the name and address of the Paying Agent) and a brief description of those rights;
(7vii) that a Holder will be entitled to withdraw its election in the procedures for withdrawing a Repurchase Election Notice if the Company (if acting as defined below).
(iiiits own Paying Agent) A Holder may exercise its rights specified in Section 1009(c)(i) upon delivery of a written notice of repurchase (a "Repurchase Election Notice") to or the Paying Agent receives, at any time prior to the close of business 5:00 p.m., New York City time, on the third (3rd) Business Day immediately preceding the applicable Option Repurchase Date, stating:
or such longer period as may be required by law, a letter or telegram, telex or facsimile transmission (1receipt 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 such Option Repurchase Date pursuant to a Repurchase at Holder’s Option, (III) the certificate number of the Security which the Holder will deliver such Securities to be repurchased;
so withdrawn (2if such Securities are in the form of Physical Securities), (IV) the portion of the principal amount of the Security which the Securities of such Holder will deliver to be repurchasedso withdrawn, which portion amount must be $1,000 or an integral multiple 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 an integral multiple thereof;
(viii) that, on and after the applicable Option Repurchase Date (unless there shall be a Default in the payment of such Option Repurchase Price or such accrued and unpaid interest or Additional Interest), 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, upon surrender of such Securities and in accordance with this Section 3.08, the Option Repurchase Price and such accrued and unpaid interest and Additional Interest; and
(ix) the CUSIP number or numbers, as the case may be, of the Securities. At the Company’s request, upon reasonable prior notice, the Trustee shall mail or electronically transmit such Option Repurchase Notice in the Company’s name and at the Company’s expense; provided, however, that the form and content of such Option Repurchase Notice shall be prepared by the Company. No failure of the Company to give an Option Repurchase Notice shall limit any Holder’s right pursuant hereto to exercise its rights to require the Company to purchase such Holder’s Securities pursuant to a Repurchase at Holder’s Option.
(C) Subject to the provisions of this Section 3.08, the Company shall pay, or cause to be paid, the Option Repurchase Price, plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the applicable Option Repurchase Date, with respect to each Security subject to Repurchase at Holder’s Option to the Holder of record thereof as promptly as practicable, but in no event more than three (3) that Business Days, following the later of the applicable Option Repurchase Date and the time such Security shall be repurchased pursuant to the terms and conditions specified in this Section 1009. The delivery of such Security to the Paying Agent prior to, on or after the Repurchase Date (together with all necessary endorsements) at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Repurchase Price therefor; provided, however, that such Repurchase Price shall be so paid pursuant to this Section 1009 only if the Security so delivered is surrendered to the Paying Agent shall conform in all respects to the description thereof set forth in the related Repurchase Election Notice. The Company shall repurchase from the Holder thereof, pursuant to this Section 1009, a portion of a Security 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 Security also apply to the repurchase of such portion of such Security. Any repurchase by the Company contemplated pursuant to the provisions of this Section 1009 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Repurchase Date and the time of delivery of the Security. Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Repurchase Election Notice contemplated by this Section 1009(c)(iii) shall have the right to withdraw such Repurchase Election Notice at any time prior to the close of business on the Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with paragraph (c)(iv)Agent.
(ivD) A Repurchase Election Notice may be withdrawn by means of a written notice of withdrawal delivered Prior to the office of the Paying Agent at any 11:00 A.M., New York City time prior to the close of business on the Repurchase Date to which it relates specifying:
(1) the certificate number of the Security in respect of which such notice of withdrawal is being submitted,
(2) the principal amount of the Security with respect to which such notice of withdrawal is being submitted, and
(3) the principal amount, if any, of such Security which remains subject to the original Repurchase Election Notice and which has been or will be delivered for repurchase by the Company.
(v) On or before the Business Day following a applicable Option Repurchase Date, the Company shall deposit with the Trustee or with the a Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting as the its own Paying Agent, shall segregate and hold in trust as provided in accordance with Section 10032.04) an amount of money ormoney, if permitted by in funds immediately available on the terms hereofapplicable Option Repurchase Date, securities sufficient to pay the aggregate Option Repurchase Price Price, plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, such Option Repurchase Date, of all of the Securities or portions thereof which that are to be repurchased by the Company on such Option Repurchase Date pursuant to a Repurchase at Holder’s Option. The Paying Agent shall return to the Company, as of such Repurchase Datesoon as practicable, any money not required for that purpose.
(viE) 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 applicable Option Repurchase Date, become due and payable at the Option Repurchase Price (plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, such Option Repurchase Date) applicable thereto, and, on and after such date (unless there shall be a Default in the payment of the Option Repurchase Price or such accrued and unpaid interest or Additional Interest), such Securities shall cease to bear interest, and all rights of the Holders of such Securities shall terminate, other than the right to receive, in accordance with this Section 3.08, the Option Repurchase Price and such accrued and unpaid interest and Additional Interest.
(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 Option Repurchase Price or in the accrued and unpaid interest or Additional Interest, if any, payable as herein provided upon Repurchase at Holder’s Option.
(G) If any Security shall not be paid upon surrender thereof for Repurchase at Holder’s Option, the principal of, and accrued and unpaid interest and Additional Interest on, such Security shall, until paid, bear interest from, and including, the applicable Option Repurchase Date 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 which is to be repurchased submitted for Repurchase at Holder’s Option only in part shall be surrendered at the office of the Paying Agent delivered pursuant to this Section 3.08 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder's its attorney duly authorized in writing) ), and the Company shall execute execute, and the Trustee shall authenticate and deliver make available for delivery to the Holder of such Security, Security without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder Holder, of the same tenor and in aggregate principal amount equal to, and in exchange for, to the portion of the principal amount of the such Security so surrendered which is not repurchasedsubmitted for Repurchase at Holder’s Option.
(viiI) In connection with any offer Notwithstanding anything herein to repurchase or the contrary, if the option granted to Holders to require the repurchase of the Securities under this Section 1009on the applicable Option Repurchase Date is determined to constitute a tender offer, the Company shall comply with all applicable federal tender offer rules under the Exchange Act, including Rule 13e-4 and state securities laws so as to permit Regulation 14E, and with all other applicable laws, and will file a Schedule TO or any other schedules required under the rights and obligations under this Section 1009 to be exercised in the time and in the manner specified in this Section 1009Exchange Act or any other applicable laws.
(viii) The Trustee and the Paying Agent shall return to the Company any cash, together with interest on such cash, if any, held by them for the payment of a Repurchase Price in respect of cash that remains unclaimed as provided in Section 1003.
(ix) Upon receipt by the Paying Agent of the Repurchase Election Notice specified in Section 1009 (c)(ii), the Holder of the Security in respect of which such Repurchase Election Notice was given shall (unless such Repurchase Election Notice is withdrawn as specified in paragraph (c) (iv)) thereafter be entitled to receive solely the Repurchase Price with respect to such Security. Such Repurchase Price shall be paid to such Holder promptly following the later of (x) the Repurchase Date with respect to such Security (provided the conditions in Section 1009(c)(iii) have been satisfied) and (y) the time of delivery of such Security to the Paying Agent by the Holder thereof in the manner required by Section 1009 (c) (iii).
(d) For purposes of this Section 1009, the following terms shall have the meanings set forth below:
Appears in 1 contract
Samples: Indenture (Midway Games Inc)
