Right to Require Repurchase upon a Fundamental Change. (a) If a Fundamental Change occurs, each Holder of Notes shall have the option to require the Company to purchase for cash all or any portion of such Holder’s Notes that is equal to $1,000, or an integral multiple of $1,000, on the day of the Company’s choosing that is not less than 20 or more than 35 Business Days after the occurrence of such Fundamental Change, subject to extension to comply with applicable law (such day, the “Fundamental Change Purchase Date”), at a purchase price (the “Fundamental Change Purchase Price”) equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid Interest to but excluding the Fundamental Change Purchase Date (unless the Fundamental Change Purchase Date is after a Record Date and on or prior to the Interest Payment Date to which it relates, in which case Interest accrued to the Interest Payment Date shall be paid to Holders of the Notes as of the preceding Record Date, and the purchase price the Company is required to pay to the Holder surrendering the Note for purchase shall be equal to 100% of the principal amount of such Note subject to purchase and shall not include any accrued and unpaid Interest). Purchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change Purchase Notice”) in the form set forth on the reverse of the Note during the period between the delivery of the Fundamental Change notice and the close of business on the second Business Day immediately preceding the Fundamental Change Purchase Date (the “Fundamental Change Expiration Time”); and (ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change Purchase Notice (together with all necessary endorsements, if the Notes are Physical Securities) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change Purchase Price therefor. The Fundamental Change Purchase Notice shall state: (A) if certificated, the certificate numbers of Notes to be delivered for purchase; (B) the portion of the principal amount of Notes to be purchased, which must be $1,000 or an integral multiple thereof; and (C) that the Notes are to be purchased by the Company pursuant to the applicable provisions of the Notes and the Indenture; provided, however, that if the Notes are Global Securities, the Fundamental Change Purchase Notice must comply with applicable Depository procedures. The Company shall be required to purchase, pursuant to subsection (d), Notes that have been validly surrendered and not withdrawn on the Fundamental Change Purchase Date pursuant to subsection (c) of this Section 4.01. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any Note that is to be purchased only in part shall be, if certificated, surrendered to the Trustee (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 his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unpurchased portion of the principal of the Note so surrendered, or, if a Global Security, the Trustee, or the custodian at the direction of the Trustee, shall make a notation on such Global Security as to the reduction in the principal amount represented thereby for the purchased portion of the principal of the Note. (b) The Company shall give the Trustee and each Holder a written notice of the Fundamental Change within 5 Business Days after the occurrence of such Fundamental Change (such notice, the “Fundamental Change Purchase Right Notice”) and issue a press release announcing the occurrence of such Fundamental Change (and make the press release available on its website). Such notice shall be either by first class mail or, with respect to Global Notes, in accordance with the Depository’s notice procedures. The Fundamental Change Purchase Right Notice shall specify (if applicable): (i) the events causing the Fundamental Change; (ii) the effective date of the Fundamental Change and whether the Fundamental Change is a Make-Whole Adjustment Event; (iii) the last date on which a Holder may exercise the purchase right pursuant to this Article 4; (iv) the Fundamental Change Purchase Price; (v) the Fundamental Change Purchase Date; (vi) the Conversion Rate and any adjustments to the Conversion Rate, and the procedures required for exercise of the Holder’s conversion right; (vii) the procedures required for exercise of the purchase option upon the Fundamental Change, and for withdrawal of a Fundamental Change Purchase Notice; and (viii) the name and address of the Paying Agent and the Conversion Agent. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 4.01. (c) A Fundamental Change Purchase Notice may be withdrawn, in whole or in part, by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Purchase Right Notice at any time until the Fundamental Change Expiration Time, specifying: (i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, (ii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, (iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not in certificated form, the withdrawal notice must comply with appropriate procedures of the Depository. (d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to purchase on the Fundamental Change Purchase Date all of the Notes to be repurchased on such date at the Fundamental Change Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for each Note surrendered for purchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made on the later of (x) the Fundamental Change Purchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Purchase Price in this Section 4.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Security Register; provided, however, that payments to the Depository shall be made by wire transfer of immediately available funds to the account of the Depository or its nominee. The Trustee (or other Paying Agent) shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Purchase Price. (e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to purchase on the Fundamental Change Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Purchase Date, then on and after the Fundamental Change Purchase Date (i) such Notes shall cease to be Outstanding and Interest, if any, shall cease to accrue on such Notes, whether or not book-entry transfer of the Notes has been made and whether or not the Notes have been delivered to the Trustee or Paying Agent and (ii) all other rights of the Holders of such Notes shall terminate, other than (A) the right to receive the Fundamental Change Purchase Price upon delivery or transfer of the Notes, and (B) if the Fundamental Change Purchase Date falls after a Record Date and on or prior to the related Interest Payment Date the right of the Holder on such Record Date to receive the Interest payable on such Interest Payment Date. (f) In connection with any offer to purchase the Notes pursuant to this Article 4, the Company shall: (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act to the extent any such rules are applicable; (ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and (iii) otherwise comply with all applicable federal and state securities laws, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner specified herein. (g) Notwithstanding anything to the contrary herein, no Notes may be purchased by the Company at the option of Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the relevant Fundamental Change Purchase Date (except in the case of an acceleration resulting from the Company’s default in the payment of the Fundamental Change Purchase Price with respect to such Notes).

Appears in 2 contracts

Samples: Second Supplemental Indenture (Endologix Inc /De/), First Supplemental Indenture (Endologix Inc /De/)

Right to Require Repurchase upon a Fundamental Change. (a) If a Fundamental Change occurs, each Holder of Notes shall have the option to require the Company to purchase for cash all or any portion of such Holder’s Notes that is equal to $1,000, or an integral multiple of $1,000, on the day of the Company’s choosing that is not less than 20 or more than 35 Business Days after the ~~occurrence~~ date of ~~such~~ the Fundamental ~~Change, subject to extension to comply with applicable law~~ Change Repurchase Right Notice (such day, the “Fundamental Change ~~Purchase~~ Repurchase Date”), at a purchase price (the “Fundamental Change ~~Purchase~~ Repurchase Price”) equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid Interest to but excluding the Fundamental Change ~~Purchase~~ Repurchase Date (unless the Fundamental Change ~~Purchase~~ Repurchase Date is after a an Interest Record Date and on or prior to the Interest Payment Date to which it relates, in which case Interest accrued to the Interest Payment Date shall be paid to Holders of the Notes as of the preceding Interest Record Date, and the purchase price the Company is required to pay to the Holder surrendering the Note for purchase shall be equal to 100% of the principal amount of such Note subject to purchase and shall not include any accrued and unpaid Interest). Purchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change Purchase Notice”) in the form set forth on the reverse of the Note during the period between the delivery of the Fundamental Change notice and the close of business on the second Business Day immediately preceding the Fundamental Change Purchase Date (the “Fundamental Change Expiration Time”); and (ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change Purchase Notice (together with all necessary endorsements, if the Notes are Physical Securities) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change Purchase Price therefor. The Fundamental Change Purchase Notice shall state: (A) if certificated, the certificate numbers of Notes to be delivered for purchase; (B) the portion of the principal amount of Notes to be purchased, which must be $1,000 or an integral multiple thereof; and (C) that the Notes are to be purchased by the Company pursuant to the applicable provisions of the Notes and the Indenture; provided, however, that if the Notes are Global Securities, the Fundamental Change Purchase Notice must comply with applicable Depository procedures. The Company shall be required to purchase, pursuant to subsection (d), Notes that have been validly surrendered and not withdrawn on the Fundamental Change Purchase Date pursuant to subsection (c) of this Section 4.01. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any Note that is to be purchased only in part shall be, if certificated, surrendered to the Trustee (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 his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unpurchased portion of the principal of the Note so surrendered, or, if a Global Security, the Trustee, or the custodian at the direction of the Trustee, shall make a notation on such Global Security as to the reduction in the principal amount represented thereby for the purchased portion of the principal of the Note. (b) The Company shall give the ~~Trustee~~ Trustee, the Paying Agent and each Holder a written notice of the Fundamental Change ~~within 5 Business Days~~ on or before the 10th calendar day after the occurrence of such Fundamental Change (such notice, the “Fundamental Change ~~Purchase~~ Repurchase Right Notice”) and issue a press release announcing the occurrence of such Fundamental Change (and make the press release available on its website). Such notice shall be either by first class mail or, with respect to Global ~~Notes~~Securities, in accordance with the ~~Depository~~Depositary’s notice procedures. The Fundamental Change ~~Purchase~~ Repurchase Right Notice shall specify (if applicable): (i) the events causing the Fundamental ~~Change; (ii) the effective date of the Fundamental~~ Change and whether the Fundamental Change is a Make-Whole Adjustment Event; (ii) the effective date of the Fundamental Change; (iii) the last date on which a Holder may exercise the purchase right pursuant to this ~~Article 4~~Section 4.01; (iv) the Fundamental Change ~~Purchase~~ Repurchase Price; (v) the Fundamental Change ~~Purchase~~ Repurchase Date; (vi) the Conversion Rate and any adjustments to the Conversion Rate, and the procedures required for exercise of the Holder’s conversion right; (vii) the procedures required for exercise of the purchase option upon the Fundamental Change, and for withdrawal of a Fundamental Change Purchase Notice; and (viii) the name and address of the Paying Agent and the Conversion Agent, if applicable; (vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate; (viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if such Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms hereof; and (ix) the procedures that holders must follow to require the Company to repurchase their notes, if applicable. Simultaneously with providing the Fundamental Change Repurchase Right Notice, the Company will publish a notice containing the information in subsections (i)-(ix) above in a newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other public medium as the Company may use at that time. (c) No failure of the Company to give the foregoing ~~notices~~ notice and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 4.01. (cd) ~~A Fundamental Change Purchase Notice may be withdrawn, in whole or in part, by means of a~~ At the Company’s written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Purchase Right Notice at any time until the Fundamental Change Expiration Time, specifying: (i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, (ii) if certificated Notes have been issuedrequest, the ~~certificate numbers of~~ Trustee shall give the ~~withdrawn Notes, (iii)~~ foregoing notice in the ~~principal amount, if any, of such Note that remains subject to~~ Company’s name and at the ~~original Fundamental Change Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000~~Company’s expense; provided, however, ~~that if the Notes are not~~ that, in ~~certificated form~~all cases, the ~~withdrawal notice must comply with appropriate procedures~~ text of such Fundamental Change Repurchase Right Notice shall be prepared by the ~~Depository.~~ Company; provided, further, that the Company shall have delivered to the Trustee, at least five (d5) ~~On or prior to 11:00 a.m., New York City time, on~~ Business Days before the Fundamental Change ~~Purchase Date~~Repurchase Right Notice is required to be mailed or sent (or such shorter period agreed to by the Trustee), ~~the Company shall deposit with~~ an Officers’ Certificate requesting that the Trustee ~~(or other~~ give such notice and setting forth the complete form of such notice and the information to be stated in such notice. Neither the Trustee nor the Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to purchase on the Fundamental Change Purchase Date all of the Notes to be repurchased on such date at the Fundamental Change Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for each Note surrendered for purchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made on the later of (x) the Fundamental Change Purchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Purchase Price in this Section 4.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 by mailing checks responsible for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Security Register; provided, however, that payments to the Depository shall be made by wire transfer of immediately available funds to the account of the Depository or its nominee. The Trustee (or other Paying Agent) shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Purchase Price. (e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to purchase on the Fundamental Change Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Purchase Date, then on and after the Fundamental Change Purchase Date (i) such Notes shall cease to be Outstanding and Interest, determining if any, shall cease to accrue on such Notes, whether or not book-entry transfer of the Notes has been made and whether or not the Notes have been delivered to the Trustee or Paying Agent and (ii) all other rights of the Holders of such Notes shall terminate, other than (A) the right to receive the Fundamental Change Purchase Price upon delivery or transfer of the Notes, and (B) if the Fundamental Change Purchase Date falls after a Record Date and on or prior to the related Interest Payment Date the right of the Holder on such Record Date to receive the Interest payable on such Interest Payment Date. (f) In connection with any offer to purchase the Notes pursuant to this Article 4, the Company shall: (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act to the extent any such rules are applicable; (ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and (iii) otherwise comply with all applicable federal and state securities laws, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner specified herein. (g) Notwithstanding anything to the contrary herein, no Notes may be purchased by the Company at the option of Holders upon a Fundamental Change ~~if the principal amount of the Notes~~ Repurchase Date is forthcoming or has ~~been accelerated, and such acceleration has not been rescinded, on~~ occurred or ~~prior to the relevant~~ for delivering a Fundamental Change ~~Purchase Date (except in the case of an acceleration resulting from the Company’s default in the payment of the Fundamental Change Purchase Price with respect~~ Repurchase Right Notice to ~~such Notes)~~Holders.

Appears in 1 contract

Samples: First Supplemental Indenture (Spectranetics Corp)

Right to Require Repurchase upon a Fundamental Change. (a) If a Fundamental Change ~~occurs~~occurs at any time, then each Holder ~~of Notes~~ shall have the ~~option~~ right, at such Holder’s option, to require the Company to purchase for cash any or all ~~or any portion~~ of such Holder’s Notes or any portion thereof that is equal to $~~1,000,~~ 1,000 or ~~an integral~~ a multiple of $~~1,000~~1,000 principal amount, on the ~~day of the Company’s choosing that is not less than 20 or more than 35 Business Days after the occurrence of such Fundamental Change, subject to extension to comply with applicable law~~ date (~~such day,~~ the “Fundamental Change Purchase Date”), ) specified by the Company that is not less than 20 calendar days and not more than 35 calendar days following the date of the Fundamental Change Purchase Right Notice (as defined below) at a purchase price equal to 100% of the principal amount thereof, together with accrued and unpaid Interest, thereon, if any, to, but excluding, the Fundamental Change Purchase Date (the “Fundamental Change Purchase Price”) ); provided, however, that if Notes are purchased pursuant to this Section 4.01 on a Fundamental Change Purchase Date that falls after the close of business on a Record Date but at or prior to the close of business on the corresponding Interest Payment Date, the Interest payable in respect of such Interest Payment Date shall be payable to the Holders of record as of the corresponding Record Date, in which case, the Fundamental Change Purchase Price shall be equal to 100% of the principal amount of the Notes ~~to be~~ being purchased, plus accrued and unpaid Interest to but excluding the Fundamental Change Purchase Date (unless the Fundamental Change Purchase Date is after a Record Date and on or prior to the Interest Payment Date to which it relates, in which case Interest accrued to the Interest Payment Date shall be paid to Holders of the Notes as of the preceding Record Date, and the purchase price the Company is required to pay to the Holder surrendering the Note for purchase shall be equal to 100% of the principal amount of such Note subject to purchase and shall not include any accrued and unpaid Interest). Purchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change Purchase Notice”) in the form set forth on the reverse of the Note during the period between the delivery of the Fundamental Change ~~notice~~ Purchase Right Notice and the close of business on the ~~second~~ Business Day immediately preceding the Fundamental Change Purchase Date (the “Fundamental Change Expiration Time”); and (ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time ~~after~~ during period between the delivery of the Fundamental Change Purchase Notice and the Fundamental Change Expiration Time (together with all necessary endorsements, if the Notes are Physical Securities) at the ~~Corporate Trust Office~~ corporate trust office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change Purchase Price therefor. The Fundamental Change Purchase Notice shall state: (A) if certificated, the certificate numbers of Notes to be delivered for purchase; (B) the portion of the principal amount of Notes to be purchased, which must be $1,000 or an integral multiple thereof; and (C) that the Notes are to be purchased by the Company pursuant to the applicable provisions of the Notes and the Indenture; provided, however, that if the Notes are Global Securities, the Fundamental Change Purchase Notice must comply with applicable Depository procedures. The Company shall be required to purchase, pursuant to subsection (d), Notes that have been validly surrendered and not withdrawn on the Fundamental Change Purchase Date pursuant to subsection (c) of this Section 4.01. Notes to be purchased pursuant to this Section 4.01 shall be paid for in cash. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any Note that is to be purchased only in part shall be, if certificated, surrendered to the Trustee (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 his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unpurchased portion of the principal of the Note so surrendered, or, if a Global Security, the Trustee, or the custodian at the direction of the Trustee, shall make a notation on such Global Security as to the reduction in the principal amount represented thereby for the purchased portion of the principal of the Note. (b) The Company shall give the Trustee and Paying Agent and each Holder a written notice of the Fundamental Change within ~~5 Business Days~~ 20 calendar days after the occurrence of such Fundamental Change (such notice, the “Fundamental Change Purchase Right Notice”) and ~~issue~~ of the purchase right at the option of Holders arising as a ~~press release announcing the occurrence of such Fundamental Change (and make the press release available on its website)~~result thereof. Such notice shall be either by first class mail or, with respect to Global Notes, in accordance with the Depository’s notice procedures. Simultaneously with providing such Fundamental Change Purchase Right Notice, the Company shall publish a notice containing the information included therein on the Company’s website or through such other public medium as the Company may use at such time. The Fundamental Change Purchase Right Notice shall specify (if applicable): (i) the events causing the Fundamental Change; (ii) the effective date of the Fundamental ~~Change and whether the Fundamental Change is a Make-Whole Adjustment Event~~Change; (iii) the last date on which a Holder may exercise the purchase right pursuant to this Article 4; (iv) the Fundamental Change Purchase Price; (v) the Fundamental Change Purchase Date; (vi) the Conversion Rate and any adjustments to the Conversion Rate, and the procedures required for exercise of the Holder’s conversion right; (vii) the procedures required for exercise of the purchase option upon the Fundamental Change, and for withdrawal of a Fundamental Change Purchase Notice; and (viii) the name and address of the Paying Agent and the Conversion Agent, if applicable; (vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate; (viii) that Notes with respect to which a Fundamental Change Purchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Purchase Notice in accordance with this Section 4.01; and (vii) the procedures that Holders must follow to require the Company to purchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 4.01. (c) A Fundamental Change Purchase Notice may be withdrawn, in whole or in part, by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Purchase Right Notice at any time until the Fundamental Change Expiration Time, specifying: (i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, (ii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes,, and (iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not in certificated form, the withdrawal notice must comply with appropriate procedures of the Depository. (d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to purchase on the Fundamental Change Purchase Date all of the Notes to be repurchased on such date at the Fundamental Change Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for each Note surrendered for purchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made on the later of (x) the Fundamental Change Purchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Purchase Price in this Section 4.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Security Register; provided, however, that payments to the Depository shall be made by wire transfer of immediately available funds to the account of the Depository or its nominee. The Trustee (or other Paying Agent) shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Purchase Price. (e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to purchase on the Fundamental Change Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Purchase Date, then on and after the Fundamental Change Purchase Date (i) such Notes shall cease to be Outstanding and Interest, if any, shall cease to accrue on such Notes, whether or not book-entry transfer of the Notes has been made and whether or not the Notes have been delivered to the Trustee or Paying Agent and (ii) all other rights of the Holders of such Notes shall terminate, other than (A) the right to receive the Fundamental Change Purchase Price upon delivery or transfer of the Notes, and (B) if the Fundamental Change Purchase Date falls after a Record Date and on or prior to the related Interest Payment Date the right of the Holder on such Record Date to receive the Interest payable on such Interest Payment Date. (f) In connection with any offer to purchase the Notes pursuant to this Article 4, the Company shall, if required: (i) comply with the provisions of ~~Rule 13e-4, Rule 14e-1 and any other~~ the tender offer rules under the Exchange Act ~~to the extent any such rules are~~ that may then be applicable; (ii) file a Schedule TO or any successor or similar ~~schedule, if required,~~ schedule under the Exchange Act, if required; and (iii) otherwise comply with all applicable federal and state securities laws, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner specified herein. (g) Notwithstanding anything to the contrary herein, no Notes may be purchased by the Company at the option of Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the relevant Fundamental Change Purchase Date (except in the case of an acceleration resulting from the Company’s default in the payment of the Fundamental Change Purchase Price with respect to such Notes). (h) Notwithstanding anything to the contrary in this Article 4, the Company shall not be required to make a Fundamental Change purchase offer pursuant to a Fundamental Change Purchase Notice upon a Fundamental Change if a third party makes the Fundamental Change purchase offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Article 4 and purchases all Notes properly tendered and not withdrawn under the Fundamental Change purchase offer.

Appears in 1 contract

Samples: First Supplemental Indenture (Envestnet, Inc.)

Right to Require Repurchase upon a Fundamental Change. (a) If a Fundamental Change ~~occurs~~occurs at any time, then each Holder ~~of Notes~~ shall have the ~~option~~ right, at such Holder's option, to require the Company to ~~purchase for cash~~ repurchase all of such Holder's Notes or any portion ~~of such Holder’s Notes~~ thereof that is ~~equal to $1,000, or an integral~~ a multiple of $~~1,000~~1,000 principal amount, for cash on the ~~day of~~ date (the ~~Company’s choosing~~ "FUNDAMENTAL CHANGE REPURCHASE DATE") specified by the Company that is not less than 20 or calendar days and not more than 35 ~~Business Days~~ calendar days after the ~~occurrence~~ date of ~~such Fundamental Change, subject to extension to comply with applicable law (such day,~~ the “Fundamental Change ~~Purchase Date”),~~ Repurchase Right Notice at a ~~purchase~~ repurchase price ~~(the “Fundamental Change Purchase Price”)~~ equal to 100% of the principal amount ~~of the Notes to be purchased~~thereof, ~~plus~~ together with accrued and unpaid ~~Interest to~~ interest thereon to, but ~~excluding~~ excluding, the Fundamental Change ~~Purchase Date (~~Repurchase Date, unless ~~the~~ such Fundamental Change ~~Purchase~~ Repurchase Date is falls after a Regular Record Date and on or prior to the corresponding Interest Payment Date, in which case the Company shall instead pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to ~~which it relates~~the Holder of record at the close of business on the corresponding Regular Record Date (the "FUNDAMENTAL CHANGE REPURCHASE PRICE"). However, ~~in which case Interest accrued~~ notwithstanding the foregoing, Holders shall not have the right to require the ~~Interest Payment Date~~ Company to repurchase any Notes (and the Company shall not be ~~paid~~ required to ~~Holders~~ deliver the Fundamental Change Repurchase Right Notice incidental thereto) if a Fundamental Change under clauses (1), (2) or (3) of the ~~Notes as~~ definition of ~~the preceding Record Date,~~ Fundamental Change occurs and ~~the purchase price the Company is required to pay to the Holder surrendering the Note for purchase shall be equal to 100~~at least 90% of the ~~principal amount~~ consideration paid for the Company's Common Stock (excluding cash payments for fractional shares and, cash payments made pursuant to dissenters' appraisal rights and cash dividends) in the case of a Fundamental Change under clause (2) of the definition of Fundamental Change consists of shares of Capital Stock or American Depositary Receipts in respect of shares of Capital Stock traded on any of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or any of their respective successors) (or will be so traded immediately following the completion of the merger or consolidation or such other transaction) and, as a result of such ~~Note~~ transaction or transactions, the Notes become convertible into such shares of Capital Stock or such American Depositary Receipts (or subject to ~~purchase~~ the Company's right to elect to satisfy its conversion obligation in cash and ~~shall not include any accrued and unpaid Interest~~such shares of Capital Stock or such American Depositary Receipts pursuant to Section 12.02 hereof). ~~Purchases~~ Repurchases of Notes under this Section ~~4.01~~ 14.01 shall be made, at the option of the Holder thereof, upon: (i) if the Notes are held in certificated form, delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the ~~“Fundamental Change Purchase Notice”~~"FUNDAMENTAL CHANGE REPURCHASE NOTICE") in the form set forth on the reverse of the Note ~~during~~ or, if the ~~period between~~ Notes are held in global form, a notice that complies with the ~~delivery of the Fundamental Change notice and~~ Applicable Procedures, prior to the close of business on the ~~second~~ Business Day immediately preceding the Fundamental Change ~~Purchase Date (the “Fundamental Change Expiration Time”)~~Repurchase Date; and (ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change ~~Purchase~~ Repurchase Notice (together with all necessary endorsements~~, if the Notes are Physical Securities~~) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change ~~Purchase~~ Repurchase Price therefor; provided that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. The Fundamental Change ~~Purchase~~ Repurchase Notice shall state: (A) if certificated, the certificate numbers of Notes to be delivered for ~~purchase~~repurchase; (B) the portion of the principal amount of Notes to be ~~purchased~~repurchased, which must be $1,000 or an integral multiple thereof; and (C) that the Notes are to be ~~purchased~~ repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture. Any purchase by the ~~Indenture; provided, however, that if~~ Company contemplated pursuant to the ~~Notes are Global Securities,~~ provisions of this Section 14.01 shall be consummated by the delivery of the consideration to be received by the Holder promptly following the later of the Fundamental Change ~~Purchase Notice must comply with applicable Depository procedures. The Company shall be required to purchase, pursuant to subsection (d), Notes that have been validly surrendered~~ Repurchase Date and ~~not withdrawn on~~ the ~~Fundamental Change Purchase Date pursuant to subsection (c)~~ time of ~~this Section 4.01~~the book-entry transfer or delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change ~~Purchase~~ Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section ~~4.01~~14.01. Any Note that is to be ~~purchased~~ repurchased only in part shall ~~be, if certificated,~~ be surrendered to the Trustee (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 his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the ~~unpurchased~~ unrepurchased portion of the principal of the Note so surrendered, or, if a Global Security, the Trustee, or the custodian at the direction of the Trustee, shall make a notation on such Global Security as to the reduction in the principal amount represented thereby for the purchased portion of the principal of the Note. (b) ~~The~~ After the occurrence of a Fundamental Change, but on or before the 10th calendar day after the Effective Date of such Fundamental Change, the Company shall ~~give~~ provide to all Holders of record of the Notes and the Trustee and ~~each Holder~~ Paying Agent a ~~written~~ notice (the "FUNDAMENTAL CHANGE REPURCHASE RIGHT NOTICE") of ~~the Fundamental Change within 5 Business Days after~~ the occurrence of such Fundamental Change ~~(such notice~~and of the repurchase right, if any, at the ~~“Fundamental Change Purchase Right Notice”) and issue~~ option of the Holders arising as a ~~press release announcing the occurrence of~~ result thereof. Such mailing shall be by first class mail. Simultaneously with providing such Fundamental Change ~~(and make~~ Repurchase Right Notice, the ~~press release available~~ Company shall publish a notice containing the information included therein in a newspaper of general circulation in the City of New York or on ~~its website)~~the Company's website or through such other public medium as the Company may use at such time. ~~Such notice shall be either by first class mail or, with respect to Global Notes, in accordance with the Depository’s notice procedures. The~~ Each Fundamental Change ~~Purchase~~ Repurchase Right Notice shall specify (if applicable): (i) the events causing the Fundamental Change; (ii) the ~~effective~~ date of the Fundamental ~~Change and whether the Fundamental Change is a Make-Whole Adjustment Event~~Change; (iii) the Fundamental Change Repurchase Date and the last date on which a Holder may exercise the ~~purchase right pursuant to this Article 4~~repurchase right; (iv) the Fundamental Change ~~Purchase~~ Repurchase Price; (v) the Fundamental Change Purchase Date; (vi) the Conversion Rate and any adjustments to the Conversion Rate, and the procedures required for exercise of the Holder’s conversion right; (vii) the procedures required for exercise of the purchase option upon the Fundamental Change, and for withdrawal of a Fundamental Change Purchase Notice; and (viii) the name and address of the Paying Agent and the Conversion Agent, if applicable; (vi) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate; (vii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; (viii) that the Holder must exercise the repurchase right on or prior to the close of business on the third Business Day immediately preceding the Fundamental Change Repurchase Date (the "FUNDAMENTAL CHANGE EXPIRATION TIME"); (ix) that the Holder shall have the right to withdraw any Notes surrendered for repurchase prior to the Fundamental Change Expiration Time; and (x) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ ' repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section ~~4.01~~14.01. (c) A Fundamental Change Purchase Notice may be withdrawn, in whole or in part, by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Purchase Right Notice at any time until the Fundamental Change Expiration Time, specifying: (i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, (ii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, (iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not in certificated form, the withdrawal notice must comply with appropriate procedures of the Depository. (d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to purchase on the Fundamental Change Purchase Date all of the Notes to be repurchased on such date at the Fundamental Change Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for each Note surrendered for purchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made on the later of (x) the Fundamental Change Purchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Purchase Price in this Section 4.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Security Register; provided, however, that payments to the Depository shall be made by wire transfer of immediately available funds to the account of the Depository or its nominee. The Trustee (or other Paying Agent) shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Purchase Price. (e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to purchase on the Fundamental Change Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Purchase Date, then on and after the Fundamental Change Purchase Date (i) such Notes shall cease to be Outstanding and Interest, if any, shall cease to accrue on such Notes, whether or not book-entry transfer of the Notes has been made and whether or not the Notes have been delivered to the Trustee or Paying Agent and (ii) all other rights of the Holders of such Notes shall terminate, other than (A) the right to receive the Fundamental Change Purchase Price upon delivery or transfer of the Notes, and (B) if the Fundamental Change Purchase Date falls after a Record Date and on or prior to the related Interest Payment Date the right of the Holder on such Record Date to receive the Interest payable on such Interest Payment Date. (f) In connection with any offer to purchase the Notes pursuant to this Article 4, the Company shall: (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act to the extent any such rules are applicable; (ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and (iii) otherwise comply with all applicable federal and state securities laws, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner specified herein. (g) Notwithstanding anything to the contrary herein, no Notes may be purchased by the Company at the option of Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the relevant Fundamental Change Purchase Date (except in the case of an acceleration resulting from the Company’s default in the payment of the Fundamental Change Purchase Price with respect to such Notes).

Appears in 1 contract

Samples: Indenture (Aspect Medical Systems Inc)

Right to Require Repurchase upon a Fundamental Change. ~~(a) If~~ In the event that a Fundamental Change ~~occurs~~(as hereinafter defined) shall occur, then each Holder ~~of Notes~~ shall have the ~~option~~ right, at the Holder’s option, to require the Company to ~~purchase~~ repurchase, and upon the exercise of such right the Company shall repurchase, all of such Holder’s Securities not theretofore converted or called for ~~cash all~~ redemption, or any portion of ~~such Holder’s Notes~~ the aggregate principal amount thereof that is equal to ~~$1,000,~~ U.S.$1,000 or an any integral multiple of ~~$1,000~~U.S.$1,000 in excess thereof (provided that no single Security may be repurchased in part unless the portion of the aggregate principal amount of such Security to be Outstanding after such repurchase is equal to U.S.$1,000 or integral multiples of U.S.$1,000 in excess thereof), on the day of the Company’s choosing that is not less than 20 or more than 35 Business Days after the occurrence of such Fundamental Change, subject to extension to comply with applicable law (such day, the “Fundamental Change Purchase Date”), at a purchase price date (the “Fundamental Change ~~Purchase Price~~Repurchase Date”) that is 30 Business Days after the date of the Fundamental Change Company Notice (as defined in Section 14.2) at a purchase price equal to 100% of the aggregate principal amount of the ~~Notes~~ Securities to be ~~purchased~~repurchased plus interest accrued but unpaid to, ~~plus accrued and unpaid Interest to~~ but ~~excluding~~ excluding, the Fundamental Change Purchase Date (unless the Fundamental Change Purchase Date is after a Record Date and on or prior to the Interest Payment Date to which it relates, in which case Interest accrued to the Interest Payment Date shall be paid to Holders of the Notes as of the preceding Record Date, and the purchase price the Company is required to pay to the Holder surrendering the Note for purchase shall be equal to 100% of the principal amount of such Note subject to purchase and shall not include any accrued and unpaid Interest). Purchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change Purchase Notice”) in the form set forth on the reverse of the Note during the period between the delivery of the Fundamental Change notice and the close of business on the second Business Day immediately preceding the Fundamental Change Purchase Repurchase Date (the “Fundamental Change ~~Expiration Time~~Repurchase Price”); and (ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change Purchase Notice (together with all necessary endorsements, if the Notes are Physical Securities) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change Purchase Price therefor. The Fundamental Change Purchase Notice shall state: (A) if certificated, the certificate numbers of Notes to be delivered for purchase; (B) the portion of the principal amount of Notes to be purchased, which must be $1,000 or an integral multiple thereof; and (C) that the Notes are to be purchased by the Company pursuant to the applicable provisions of the Notes and the Indenture; provided, however, that if the Notes are Global Securities, the Fundamental Change Purchase Notice must comply with applicable Depository procedures. The Company shall be required to purchase, pursuant to subsection (d), Notes that have been validly surrendered and not withdrawn installments of interest on ~~the Fundamental Change Purchase Date pursuant to subsection (c) of this Section 4.01. The Trustee (~~Securities whose Stated Maturity is on or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any Note that is to be purchased only in part shall be, if certificated, surrendered to the Trustee (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 his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unpurchased portion of the principal of the Note so surrendered, or, if a Global Security, the Trustee, or the custodian at the direction of the Trustee, shall make a notation on such Global Security as to the reduction in the principal amount represented thereby for the purchased portion of the principal of the Note. (b) The Company shall give the Trustee and each Holder a written notice of the Fundamental Change within 5 Business Days after the occurrence of such Fundamental Change (such notice, the “Fundamental Change Purchase Right Notice”) and issue a press release announcing the occurrence of such Fundamental Change (and make the press release available on its website). Such notice shall be either by first class mail or, with respect to Global Notes, in accordance with the Depository’s notice procedures. The Fundamental Change Purchase Right Notice shall specify (if applicable): (i) the events causing the Fundamental Change; (ii) the effective date of the Fundamental Change and whether the Fundamental Change is a Make-Whole Adjustment Event; (iii) the last date on which a Holder may exercise the purchase right pursuant to this Article 4; (iv) the Fundamental Change Purchase Price; (v) the Fundamental Change Purchase Date; (vi) the Conversion Rate and any adjustments to the Conversion Rate, and the procedures required for exercise of the Holder’s conversion right; (vii) the procedures required for exercise of the purchase option upon the Fundamental Change, and for withdrawal of a Fundamental Change Purchase Notice; and (viii) the name and address of the Paying Agent and the Conversion Agent. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 4.01. (c) A Fundamental Change Purchase Notice may be withdrawn, in whole or in part, by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Purchase Right Notice at any time until the Fundamental Change Expiration Time, specifying: (i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, (ii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, (iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not in certificated form, the withdrawal notice must comply with appropriate procedures of the Depository. (d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to purchase on the Fundamental Change Purchase Date all of the Notes to be repurchased on such date at the Fundamental Change Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for each Note surrendered for purchase (and not withdrawn) prior to the Fundamental Change ~~Expiration Time~~ Repurchase Date shall be made on the later of (x) the Fundamental Change Purchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Purchase Price in this Section 4.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 by mailing checks for the amount payable to the Holders of such ~~Notes entitled thereto~~ Securities, or one or more Predecessor Securities, registered as ~~they~~ such on the relevant Record Date according to their terms and the provisions of Section 3.7. Such right to require the repurchase of the Securities shall ~~appear in~~ not continue after a discharge of the ~~Security Register; provided, however, that payments~~ Company from its obligations with respect to the ~~Depository~~ Securities in accordance with Article IV, unless a Fundamental Change shall have occurred prior to such discharge. Whenever in this Indenture (including Sections 2.2, 3.1, 5.1(1) and 5.8) there is a reference, in any context, to the principal of any Security as of any time, such reference shall be ~~made by wire transfer of immediately available funds~~ deemed to include reference to the ~~account~~ Fundamental Change Repurchase Price payable in respect of ~~the Depository or its nominee. The Trustee (or other Paying Agent) shall, promptly after~~ such ~~payment and upon written demand by the Company, return~~ Security to the ~~Company any funds in excess~~ extent that such Fundamental Change Repurchase Price is, was or would be so payable at such time, and express mention of the Fundamental Change ~~Purchase Price. (e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to purchase on~~ Repurchase Price in any provision of this Indenture shall not be construed as excluding the Fundamental Change Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Purchase Date, then on and after the Fundamental Change Purchase Date (i) such Notes shall cease to be Outstanding and Interest, if any, shall cease to accrue on such Notes, whether or not book-entry transfer of the Notes has been made and whether or not the Notes have been delivered to the Trustee or Paying Agent and (ii) all other rights of the Holders of such Notes shall terminate, other than (A) the right to receive the Fundamental Change Purchase Repurchase Price upon delivery or transfer of the Notes, and (B) if the Fundamental Change Purchase Date falls after a Record Date and on or prior to the related Interest Payment Date the right of the Holder on such Record Date to receive the Interest payable on such Interest Payment Date. (f) In connection with any offer to purchase the Notes pursuant to this Article 4, the Company shall: (i) comply with the in those provisions of ~~Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act to the extent any~~ this Indenture when such rules are applicable; (ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and (iii) otherwise comply with all applicable federal and state securities laws, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner specified hereinexpress mention is not made. (g) Notwithstanding anything to the contrary herein, no Notes may be purchased by the Company at the option of Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the relevant Fundamental Change Purchase Date (except in the case of an acceleration resulting from the Company’s default in the payment of the Fundamental Change Purchase Price with respect to such Notes).

Appears in 1 contract

Samples: Indenture (Privatebancorp, Inc)

Right to Require Repurchase upon a Fundamental Change. (a) If a Fundamental Change ~~occurs~~occurs at any time, then each Holder ~~of Notes~~ shall have the ~~option~~ right, at such Holder’s option, to require the Company to ~~purchase for cash~~ repurchase all ~~or any portion~~ of such Holder’s Notes or any portion of the principal amount thereof that is equal to $~~1,000,~~ 1,000 or an integral multiple of $~~1,000~~1.00 in excess thereof, for cash on the ~~day of~~ date specified by the ~~Company’s choosing~~ Company that is not less than 20 or and not more than 35 Business Days after the ~~occurrence~~ date of ~~such~~ the Fundamental ~~Change, subject to extension to comply with applicable law~~ Change Repurchase Right Notice (such ~~day~~specified date, the “Fundamental Change ~~Purchase~~ Repurchase Date”), ) at a ~~purchase~~ repurchase price ~~(the “Fundamental Change Purchase Price”)~~ equal to 100% of the principal amount ~~of the Notes to be purchased~~thereof, ~~plus~~ together with accrued and unpaid ~~Interest to~~ interest thereon to, but ~~excluding~~ excluding, the Fundamental Change ~~Purchase Date (~~Repurchase Date, unless ~~the~~ such Fundamental Change ~~Purchase~~ Repurchase Date is falls after the Close of Business on a Regular Record Date and on or prior to the Close of Business on the corresponding Interest Payment Date, in which case the Company shall pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to which it relates, in which case Interest accrued to the Interest Payment Date shall be paid to Holders of the Notes as of the preceding Record Date, and the purchase price the Company is required to pay to the Holder ~~surrendering~~ of record at the ~~Note for purchase shall be equal to 100%~~ Close of Business on the ~~principal amount of such Note subject to purchase and shall not include any accrued and unpaid Interest~~corresponding Regular Record Date (the “Fundamental Change Repurchase Price”). ~~Purchases~~ Repurchases of Notes under this Section ~~4.01~~ 15.01 shall be made, at the option of the Holder thereof, upon: (i) delivery to the ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ by a Holder (if Notes are Global Notes, in accordance with Applicable Procedures) of a duly completed notice ~~(the “Fundamental Change Purchase Notice”)~~ in the form set forth on the ~~reverse~~ form of Note attached hereto as Exhibit A (the ~~Note during the period~~ “Fundamental Change Repurchase Notice”) between the ~~delivery~~ date of the Fundamental Change ~~notice~~ Repurchase Right Notice and the ~~close~~ Close of ~~business~~ Business on the ~~second~~ Business Day immediately preceding the Fundamental Change ~~Purchase Date (the “Fundamental Change Expiration Time”)~~Repurchase Date; and (ii) delivery or book-entry transfer of the Notes to the ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ at any time ~~after delivery~~ on or before the Close of Business on the Business Day immediately preceding the Fundamental Change ~~Purchase Notice~~ Repurchase Date (together with all necessary endorsements~~, if the Notes are Physical Securities) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company~~), such delivery being a condition to receipt by the Holder of the Fundamental Change ~~Purchase~~ Repurchase Price therefor~~. The~~ ; provided that such Fundamental Change ~~Purchase~~ Repurchase Price shall be so paid pursuant to this Section 15.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. If such Notes are Definitive Notes, each Fundamental Change Repurchase Notice shall state: (A1) ~~if certificated,~~ the certificate numbers of Notes to be delivered for ~~purchase~~repurchase; (B2) the portion of the principal amount of Notes to be ~~purchased~~repurchased, which must be $1,000 or an integral multiple of $1.00 in excess thereof; and (C3) that the Notes are to be ~~purchased~~ repurchased by the Company pursuant to the applicable provisions of the Notes and ~~the~~ this Indenture~~; provided, however, that if the~~ . If such Notes are Global ~~Securities~~Notes, the Fundamental Change ~~Purchase~~ Repurchase Notice ~~must~~ shall comply with ~~applicable Depository procedures~~the Applicable Procedures. ~~The~~ Any purchase by the Company contemplated pursuant to the provisions of this Section 15.01 shall be ~~required to purchase, pursuant to subsection (d), Notes that have been validly surrendered and not withdrawn on~~ consummated by the delivery of the Fundamental Change ~~Purchase~~ Repurchase Price to be received by the Holder promptly following the later of the Fundamental Change Repurchase Date ~~pursuant to subsection (c)~~ and the time of ~~this Section 4.01~~the book-entry transfer or delivery of the Note. The ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ shall promptly notify the Company of the receipt by it of any Fundamental Change ~~Purchase~~ Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of ~~subsection (c) of this~~ Section ~~4.01~~15.01(c). Any Note that is to be ~~purchased~~ repurchased only in part shall ~~be, if certificated,~~ be surrendered to the Trustee (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 by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the ~~unpurchased~~ unrepurchased portion of the principal of the Note so surrendered, or, if a Global Security, the Trustee, or the custodian at the direction of the Trustee, shall make a notation on such Global Security as to the reduction in the principal amount represented thereby for the purchased portion of the principal of the Note. (b) ~~The~~ After the occurrence of a Fundamental Change, but on or before the 10th calendar day following the Effective Date of such Fundamental Change, the Company shall ~~give~~ provide to all Holders and the Trustee and ~~each Holder~~ Paying Agent a ~~written~~ notice of (the “Fundamental Change ~~within 5 Business Days after~~ Repurchase Right Notice”), in the manner provided for in Section 15.01, of the occurrence of such Fundamental Change ~~(such notice~~and of the repurchase right, if any, at the “option of the Holders, arising as a result thereof. Each Fundamental Change Purchase Right Notice”) and issue a press release announcing the occurrence of such Fundamental Change (and make the press release available on its website). Such notice shall be either by first class mail or, with respect to Global Notes, in accordance with the Depository’s notice procedures. The Fundamental Change Purchase Repurchase Right Notice shall ~~specify (if applicable):~~specify: (i) the events causing the Fundamental Change; (ii) the ~~effective~~ date of the Fundamental ~~Change and whether the Fundamental Change is a Make-Whole Adjustment Event~~Change; (iii) the last date on which a Holder may exercise the ~~purchase right pursuant to this Article 4~~repurchase right; (iv) the Fundamental Change ~~Purchase Price~~Repurchase Date; (v) the Fundamental Change ~~Purchase Date~~Repurchase Price; (vi) the Conversion Rate and any adjustments to the Conversion Rate, and the procedures required for exercise of the Holder’s conversion right; (vii) the procedures required for exercise of the purchase option upon the Fundamental Change, and for withdrawal of a Fundamental Change Purchase Notice; and (viii) the name and address of the Paying Agent and the Conversion Agent; (vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate, if any; (viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; (ix) that the Holder must exercise the repurchase right on or prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”); (x) that the Holder shall have the right to withdraw any Notes surrendered for repurchase prior to the Fundamental Change Expiration Time; and (xi) the procedures that Holders must follow to require the Company to repurchase their Notes. Simultaneously with providing the Fundamental Change Repurchase Right Notice, the Company shall publish this above information on the Company’s website or through such other public medium as the Company may use at that time. No failure of the Company to give the foregoing notices or publish the foregoing information and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section ~~4.01~~15.01. (c) A Fundamental Change ~~Purchase~~ Repurchase Notice may be ~~withdrawn,~~ withdrawn in whole or in ~~part,~~ part by means of a written notice of withdrawal delivered to the Paying Agent ~~in accordance with the Fundamental Change Purchase Right Notice~~ at any time ~~until~~ prior to the Fundamental Change Expiration Time, specifying: (i) if such Notes are Definitive Notes, the certificate numbers of the withdrawn Notes, (ii) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted~~, (ii) if certificated Notes have been issued~~, ~~the certificate numbers of the withdrawn Notes,~~and (iii) the principal amount, if any, of such ~~Note~~ Notes that ~~remains~~ remain subject to the original Fundamental Change ~~Purchase~~ Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $~~1,000~~1.00 in excess thereof; provided, however, that if the Notes are ~~not in certificated form~~Global Notes, ~~the withdrawal~~ such notice must comply with ~~appropriate procedures of the Depository~~any Applicable Procedures. (d) ~~On or prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date, the~~ The Company shall deposit with the ~~Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own~~ Paying Agent, ~~set aside~~in accordance with Section 4.01, ~~segregate and hold in trust)~~ an amount of money sufficient to ~~purchase~~ repurchase on the Fundamental Change ~~Purchase~~ Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change ~~Purchase~~ Repurchase Price. Subject to receipt of funds and/or Notes by the ~~Trustee (or other~~ Paying ~~Agent appointed by the Company)~~Agent, payment for ~~each Note~~ Notes surrendered for ~~purchase~~ repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made on promptly after the later of (x) the Fundamental Change ~~Purchase~~ Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change ~~Purchase~~ Repurchase Price in this Section ~~4.01~~15.01), and (y) the time of book-entry transfer or the delivery of such Note to the ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ by the Holder thereof in the manner required by this Section ~~4.01~~ 15.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the ~~Security~~ Register; provided, however, that payments to the ~~Depository~~ Depositary shall be made by wire transfer of immediately available funds to the account of the ~~Depository~~ Depositary or its nominee. The ~~Trustee (or other~~ Paying ~~Agent)~~ Agent shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change ~~Purchase~~ Repurchase Price. (e) If Subject to a Holder’s right to receive interest on the ~~Trustee (or other~~ related Interest Payment Date where the Fundamental Change Repurchase Date falls between a Regular Record Date and the Interest Payment Date to which it relates, if the Paying Agent ~~appointed by the Company)~~ holds money sufficient to ~~purchase~~ repurchase on the Fundamental Change ~~Purchase~~ Repurchase Date all of the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change ~~Purchase~~ Repurchase Date, then on and after the Fundamental Change ~~Purchase~~ Repurchase Date (i) such Notes shall cease to be ~~Outstanding~~ outstanding and ~~Interest, if any,~~ interest shall cease to accrue on such Notes, in either case, whether or not book-entry transfer of the Notes has been made ~~and whether~~ or ~~not~~ the Notes have been delivered to the ~~Trustee or~~ Paying Agent and (ii) all other rights of the Holders of such Notes shall ~~terminate,~~ terminate other than ~~(A)~~ the right to receive the Fundamental Change ~~Purchase~~ Repurchase Price ~~upon delivery or transfer of the Notes~~and previously accrued and unpaid interest, ~~and (B)~~ if the Fundamental Change Purchase Date falls after a Record Date and on or prior to the related Interest Payment Date the right of the Holder on such Record Date to receive the Interest payable on such Interest Payment Dateany. (f) In connection with any offer to purchase the Notes pursuant to this Article 4, the Company shall: (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act to the extent any such rules are applicable; (ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and (iii) otherwise comply with all applicable federal and state securities laws, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner specified herein. (g) Notwithstanding anything to the contrary herein, no No Notes may be ~~purchased by the Company~~ repurchased on any date at the option of Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the ~~relevant~~ applicable Fundamental Change ~~Purchase~~ Repurchase Date (except in the case of an acceleration resulting from a default by the ~~Company’s default~~ Company in the payment of the applicable Fundamental Change ~~Purchase~~ Repurchase Price with respect to such Notes). (g) In connection with any repurchase offer pursuant to a Fundamental Change Repurchase Notice, the Company shall, if required: (i) comply with the provisions of Rule 13e-4 under the Exchange Act, Rule 14e-1 under the Exchange Act and any other tender offer rules under the Exchange Act that may then be applicable; (ii) file a Schedule TO (or any successor schedule, form or report) to the extent required or any other required schedule under the Exchange Act; and (iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes. SIGNATURES Dated as of March 27, 2020 A. M. CASTLE & CO. By: /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Title: Secretary TOTAL PLASTICS, INC. By: /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Title: Secretary A. M. CASTLE & CO. (CANADA) INC. By: /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Title: Secretary HY-ALLOY STEELS COMPANY By: /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Title: Secretary KEYSTONE SERVICE, INC. By: /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Title: Secretary KEYSTONE TUBE COMPANY, LLC By: /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Title: Secretary CASTLE METALS DE MEXICO, S.A. DE C.V. By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: Attorney-in-Fact CASTLE METALS DE MEXICALI, S.A. DE C.V. By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: Attorney-in-Fact WILMINGTON SAVINGS FUND SOCIETY, FSB, not in its individual capacity but solely as Trustee By: /s/ Xxxxxxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx Title: Vice President WILMINGTON SAVINGS FUND SOCIETY, FSB, not in its individual capacity but solely as Collateral Agent By: /s/ Xxxxxxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx Title: Vice President No. [ ] $[ ] A. M. Castle & Co., a Maryland corporation (the “Company”), promises to pay to [ ] or registered assigns, the principal sum of [ ] DOLLARS[, as revised by the Schedule of Increases and Decreases in Global Note attached hereto,]* Insert in Global Note. on [________], 2024. Interest Payment Dates: March 31, June 30, September 30 and December 31 Record Dates: March 15, June 15, September 15 and December 15

Appears in 1 contract

Samples: Indenture (A. M. Castle & Co.)

Right to Require Repurchase upon a Fundamental Change. (a) If a Fundamental Change ~~occurs~~occurs at any time, then each Holder ~~of Notes~~ shall have the ~~option~~ right, at such Holder’s option, to require the Company to ~~purchase for cash~~ repurchase all ~~or any portion~~ of such Holder’s Notes or any portion of the principal amount thereof that is equal to $~~1,000,~~ 1,000 or an integral multiple of $~~1,000~~1,000 in excess thereof, for cash on the ~~day of~~ date (the ~~Company’s choosing~~ “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 or and not more than 35 Business Days after the ~~occurrence~~ date of ~~such Fundamental Change, subject to extension to comply with applicable law (such day,~~ the “Fundamental Change ~~Purchase Date”),~~ Repurchase Right Notice at a ~~purchase~~ repurchase price ~~(the “Fundamental Change Purchase Price”)~~ equal to 100% of the principal amount ~~of the Notes to be purchased~~thereof, ~~plus~~ together with accrued and unpaid ~~Interest to~~ interest thereon to, but ~~excluding~~ excluding, the Fundamental Change ~~Purchase Date (~~Repurchase Date, unless ~~the~~ such Fundamental Change ~~Purchase~~ Repurchase Date is falls after the Close of Business on a Regular Record Date and on or prior to the Close of Business on the corresponding Interest Payment Date, in which case the Company shall pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to which it relates, in which case Interest accrued to the Interest Payment Date shall be paid to Holders of the Notes as of the preceding Record Date, and the purchase price the Company is required to pay to the Holder ~~surrendering~~ of record at the ~~Note for purchase shall be equal to 100%~~ Close of Business on the ~~principal amount of such Note subject to purchase and shall not include any accrued and unpaid Interest~~corresponding Regular Record Date (the “Fundamental Change Repurchase Price”). ~~Purchases~~ Repurchases of Notes under this Section ~~4.01~~ 3.01 shall be made, at the option of the Holder thereof, upon: (i) delivery to the ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ by a Holder (if Notes are Global Notes, in accordance with Applicable Procedures) of a duly completed notice (the “Fundamental Change ~~Purchase~~ Repurchase Notice”) in the form set forth on the ~~reverse~~ form of ~~the~~ Note ~~during the period~~ attached hereto as Exhibit A between the ~~delivery~~ date of the Fundamental Change ~~notice~~ Repurchase Right Notice and the ~~close~~ Close of ~~business~~ Business on the ~~second~~ Business Day immediately preceding the Fundamental Change ~~Purchase Date (the “Fundamental Change Expiration Time”)~~Repurchase Date; and (ii) delivery or book-entry transfer of the Notes to the ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ at any time ~~after delivery~~ on or before the Close of Business on the Business Day immediately preceding the Fundamental Change ~~Purchase Notice~~ Repurchase Date (together with all necessary endorsements~~, if the Notes are Physical Securities) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company~~), such delivery being a condition to receipt by the Holder of the Fundamental Change ~~Purchase~~ Repurchase Price therefor~~. The~~ ; provided that such Fundamental Change ~~Purchase~~ Repurchase Price shall be so paid pursuant to this Section 3.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. If such Notes are Certificated Notes, each Fundamental Change Repurchase Notice shall state: (A1) ~~if certificated,~~ the certificate numbers of Notes to be delivered for ~~purchase~~repurchase; (B2) the portion of the principal amount of Notes to be ~~purchased~~repurchased, which must be $1,000 or an integral multiple of $1,000 in excess thereof; and (C3) that the Notes are to be ~~purchased~~ repurchased by the Company pursuant to the applicable provisions of the Notes and ~~the~~ this Indenture~~; provided, however, that if the~~ . If such Notes are Global ~~Securities~~Notes, the Fundamental Change ~~Purchase~~ Repurchase Notice ~~must~~ shall comply with ~~applicable Depository procedures~~the Applicable Procedures. ~~The~~ Any purchase by the Company contemplated pursuant to the provisions of this Section 3.01 shall be ~~required to purchase, pursuant to subsection (d), Notes that have been validly surrendered and not withdrawn on~~ consummated by the delivery of the Fundamental Change ~~Purchase~~ Repurchase Price to be received by the Holder promptly following the later of the Fundamental Change Repurchase Date ~~pursuant to subsection (c)~~ and the time of ~~this Section 4.01~~the book-entry transfer or delivery of the Note. The ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ shall promptly notify the Company of the receipt by it of any Fundamental Change ~~Purchase~~ Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of ~~subsection (c) of this~~ Section ~~4.01~~3.01(c). Any Note that is to be ~~purchased~~ repurchased only in part shall ~~be, if certificated,~~ be surrendered to the Trustee (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 his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the ~~unpurchased~~ unrepurchased portion of the principal of the Note so surrendered, or, if a Global Security, the Trustee, or the custodian at the direction of the Trustee, shall make a notation on such Global Security as to the reduction in the principal amount represented thereby for the purchased portion of the principal of the Note. (b) ~~The~~ After the occurrence of a Fundamental Change, but on or before the 10th calendar day following the Effective Date of such Fundamental Change, the Company shall ~~give~~ provide to all Holders and the Trustee and ~~each Holder~~ Paying Agent a ~~written~~ notice of (the “Fundamental Change ~~within 5 Business Days after~~ Repurchase Right Notice”), in the manner provided for in Section 14.01, of the occurrence of such Fundamental Change ~~(such notice~~and of the repurchase right, if any, at the “option of the Holders, arising as a result thereof. Each Fundamental Change Purchase Right Notice”) and issue a press release announcing the occurrence of such Fundamental Change (and make the press release available on its website). Such notice shall be either by first class mail or, with respect to Global Notes, in accordance with the Depository’s notice procedures. The Fundamental Change Purchase Repurchase Right Notice shall ~~specify (if applicable):~~specify: (i) the events causing the Fundamental Change; (ii) the ~~effective~~ date of the Fundamental ~~Change and whether the Fundamental Change is a Make-Whole Adjustment Event~~Change; (iii) the last date on which a Holder may exercise the ~~purchase right pursuant to this Article 4~~repurchase right; (iv) the Fundamental Change ~~Purchase Price~~Repurchase Date; (v) the Fundamental Change ~~Purchase Date~~Repurchase Price; (vi) the Conversion Rate and any adjustments to the Conversion Rate, and the procedures required for exercise of the Holder’s conversion right; (vii) the procedures required for exercise of the purchase option upon the Fundamental Change, and for withdrawal of a Fundamental Change Purchase Notice; and (viii) the name and address of the Paying Agent and the Conversion Agent; (vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate, if any; (viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; (ix) that the Holder must exercise the repurchase right on or prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”); (x) that the Holder shall have the right to withdraw any Notes surrendered for repurchase prior to the Fundamental Change Expiration Time; and (xi) the procedures that Holders must follow to require the Company to repurchase their Notes. Simultaneously with providing the Fundamental Change Repurchase Right Notice, the Company shall publish this above information on the Company’s website or through such other public medium as the Company may use at that time. No failure of the Company to give the foregoing notices or publish the foregoing information and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section ~~4.01~~3.01. (c) A Fundamental Change ~~Purchase~~ Repurchase Notice may be ~~withdrawn,~~ withdrawn in whole or in ~~part,~~ part by means of a written notice of withdrawal delivered to the Paying Agent ~~in accordance with the Fundamental Change Purchase Right Notice~~ at any time ~~until~~ prior to the Fundamental Change Expiration Time, specifying: (i) if such Notes are Certificated Notes, the certificate numbers of the withdrawn Notes, (ii) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted~~, (ii) if certificated Notes have been issued~~, ~~the certificate numbers of the withdrawn Notes,~~and (iii) the principal amount, if any, of such ~~Note~~ Notes that ~~remains~~ remain subject to the original Fundamental Change ~~Purchase~~ Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $~~1,000~~1,000 in excess thereof; provided, however, that if the Notes are ~~not in certificated form~~Global Notes, ~~the withdrawal~~ such notice must comply with ~~appropriate procedures of the Depository~~any Applicable Procedures. (d) ~~On or prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date, the~~ The Company shall deposit with the ~~Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own~~ Paying Agent, ~~set aside~~in accordance with Section 4.01, ~~segregate and hold in trust)~~ an amount of money sufficient to ~~purchase~~ repurchase on the Fundamental Change ~~Purchase~~ Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change ~~Purchase~~ Repurchase Price. Subject to receipt of funds and/or Notes by the ~~Trustee (or other~~ Paying ~~Agent appointed by the Company)~~Agent, payment for ~~each Note~~ Notes surrendered for ~~purchase~~ repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made on promptly after the later of (x) the Fundamental Change ~~Purchase~~ Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change ~~Purchase~~ Repurchase Price in this Section ~~4.01~~3.01), and (y) the time of book-entry transfer or the delivery of such Note to the ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ by the Holder thereof in the manner required by this Section ~~4.01~~ 3.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the ~~Security~~ Register; provided, however, that payments to the ~~Depository~~ Depositary shall be made by wire transfer of immediately available funds to the account of the ~~Depository~~ Depositary or its nominee. The Trustee ~~(or other Paying Agent)~~ shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change ~~Purchase~~ Repurchase Price. (e) If Subject to a Holder’s right to receive interest on the ~~Trustee (or other~~ related Interest Payment Date where the Fundamental Change Repurchase Date falls between a Regular Record Date and the Interest Payment Date to which it relates, if the Paying Agent ~~appointed by the Company)~~ holds money sufficient to ~~purchase~~ repurchase on the Fundamental Change ~~Purchase~~ Repurchase Date all of the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change ~~Purchase~~ Repurchase Date, then on and after the Fundamental Change ~~Purchase~~ Repurchase Date (i) such Notes shall cease to be ~~Outstanding~~ outstanding and ~~Interest, if any,~~ interest shall cease to accrue on such Notes, in either case, whether or not ~~book-~~book- entry transfer of the Notes has been made ~~and whether~~ or ~~not~~ the Notes have been delivered to the ~~Trustee or~~ Paying Agent and (ii) all other rights of the Holders of such Notes shall ~~terminate,~~ terminate other than ~~(A)~~ the right to receive the Fundamental Change ~~Purchase~~ Repurchase Price ~~upon delivery or transfer of the Notes~~and previously accrued and unpaid interest, ~~and (B)~~ if the Fundamental Change Purchase Date falls after a Record Date and on or prior to the related Interest Payment Date the right of the Holder on such Record Date to receive the Interest payable on such Interest Payment Dateany. (f) In connection with any offer to purchase the Notes pursuant to this Article 4, the Company shall: (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act to the extent any such rules are applicable; (ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and (iii) otherwise comply with all applicable federal and state securities laws, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner specified herein. (g) Notwithstanding anything to the contrary herein, no No Notes may be ~~purchased by the Company~~ repurchased on any date at the option of Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the ~~relevant~~ applicable Fundamental Change ~~Purchase~~ Repurchase Date (except in the case of an acceleration resulting from a default by the ~~Company’s default~~ Company in the payment of the applicable Fundamental Change ~~Purchase~~ Repurchase Price with respect to such Notes). (g) In connection with any repurchase offer pursuant to a Fundamental Change Repurchase Notice, the Company shall, if required: (i) comply with the provisions of Rule 13e-4 under the Exchange Act, Rule 14e-1 under the Exchange Act and any other tender offer rules under the Exchange Act that may then be applicable; (ii) file a Schedule TO (or any successor schedule, form or report) to the extent required or any other required schedule under the Exchange Act; and (iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes.

Appears in 1 contract

Samples: Indenture (Castle a M & Co)

Right to Require Repurchase upon a Fundamental Change. (a) If a Fundamental Change occurs, each Holder of Notes shall have the option to require the Company to purchase for cash all or any portion of such Holder’s Notes that is equal to $1,000, or an integral multiple of $1,000, on the day of the Company’s choosing that is not less than 20 or more than 35 Business Days after the ~~occurrence~~ date of ~~such~~ the Fundamental ~~Change, subject to extension to comply with applicable law~~ Change Purchase Right Notice (such day, the “Fundamental Change Purchase Date”), ) at a purchase price (the “Fundamental Change Purchase Price”) equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid Interest to but excluding the Fundamental Change Purchase Date (unless the Fundamental Change Purchase Date is after a Record Date and on or prior to the Interest Payment Date to which it relates, in which case Interest accrued to the Interest Payment Date shall be paid to Holders of the Notes as of the preceding Record Date, and the purchase price the Company is required to pay to the Holder surrendering the Note for purchase shall be equal to 100% of the principal amount of such Note subject to purchase and shall not include any accrued and unpaid Interest). Purchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change Purchase Notice”) in the form set forth on the reverse of the Note during the period between the delivery of the Fundamental Change ~~notice~~ Purchase Right Notice and the close of business on the ~~second~~ Business Day immediately preceding the Fundamental Change Purchase Date (the “Fundamental Change Expiration Time”); and (ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change Purchase Notice (together with all necessary endorsements, if the Notes are Physical Securities) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change Purchase Price therefor. The Fundamental Change Purchase Notice shall state: (A) if certificated, the certificate numbers of Notes to be delivered for purchase; (B) the portion of the principal amount of Notes to be purchased, which must be $1,000 or an integral multiple thereof; and (C) that the Notes are to be purchased by the Company pursuant to the applicable provisions of the Notes and the Indenture; provided, however, that if the Notes are Global Securities, the Fundamental Change Purchase Notice must comply with applicable ~~Depository~~ Depositary procedures. The Company shall be required to purchase, pursuant to subsection (d), Notes that have been validly surrendered and not withdrawn on the Fundamental Change Purchase Date pursuant to subsection (c) of this Section 4.01. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any Note that is to be purchased only in part shall be, if certificated, surrendered to the Trustee (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 his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unpurchased portion of the principal of the Note so surrendered, or, if a Global Security, the Trustee, or the custodian at the direction of the Trustee, shall make a notation on such Global Security as to the reduction in the principal amount represented thereby for the purchased portion of the principal of the Note. (b) The Company shall ~~give~~ mail to the Trustee and to each Holder a written notice of the Fundamental Change within 5 ten Business Days after the occurrence of such Fundamental Change (such ~~notice,~~ notice the “Fundamental Change Purchase Right Notice”~~) and issue a press release announcing the occurrence of such Fundamental Change (and make the press release available on its website~~). Such ~~notice~~ mailing shall be ~~either~~ by first class ~~mail or, with respect to Global Notes, in accordance with the Depository’s notice procedures~~mail. ~~The~~ Each Fundamental Change Purchase Right Notice shall specify (if applicable): (i) the events causing the Fundamental Change; (ii) the effective date of the Fundamental Change and whether the Fundamental Change is a Make-Whole Adjustment Event, in which case the notice shall state the Effective Date of the Make-Whole Adjustment Event; (iii) the procedures required for exercise of the Holder’s conversion right, and that the Notes with respect to which a Fundamental Change Purchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Purchase Notice in accordance with the terms of the Indenture; (iv) the last date on which a Holder may exercise the purchase right pursuant to this Article 4; (ivv) the Fundamental Change Purchase Price; (vvi) the Fundamental Change Purchase Date; (vivii) the Conversion Rate and any adjustments to the Conversion Rate~~, and the procedures required for exercise of the Holder’s conversion right~~; (~~vii~~viii) the procedures required for exercise of the purchase option upon the Fundamental Change, and for withdrawal of a Fundamental Change Purchase Notice; and (~~viii~~ix) the name and address of the Paying Agent and the Conversion Agent. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 4.01. (c) A Fundamental Change Purchase Notice may be withdrawn, in whole or in part, by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Purchase Right Notice at any time until the Fundamental Change Expiration Time, specifying: (i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, (ii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, (iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not in certificated form, the withdrawal notice must comply with appropriate procedures of the ~~Depository~~Depositary. (d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to purchase on the Fundamental Change Purchase Date all of the Notes to be repurchased on such date at the Fundamental Change Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for each Note surrendered for purchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made on promptly following the later of (x) the Fundamental Change Purchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Purchase Price in this Section 4.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Security Register; provided, however, that payments to the ~~Depository~~ Depositary shall be made by wire transfer of immediately available funds to the account of the ~~Depository~~ Depositary or its nominee. The Trustee (or other Paying Agent) shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Purchase Price. (e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to purchase on the Fundamental Change Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Purchase Date, then on and after the Fundamental Change Purchase Date (i) such Notes shall cease to be Outstanding and Interest, if any, shall cease to accrue on such Notes, whether or not book-entry transfer of the Notes has been made and whether or not the Notes have been delivered to the Trustee or Paying Agent and (ii) all other rights of the Holders of such Notes shall terminate, other than (A) the right to receive the Fundamental Change Purchase Price upon delivery or transfer of the Notes, and (B) if the Fundamental Change Purchase Date falls after a Record Date and on or prior to the related Interest Payment Date the right of the Holder on such Record Date to receive the Interest payable on such Interest Payment Date. (f) In connection with any ~~offer to~~ purchase ~~the~~ of Notes pursuant to this Article 4, the Company shall: (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act to the extent any such rules are applicable; (ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and (iii) otherwise comply with all ~~applicable~~ federal and state securities ~~laws,~~ laws in ~~each case, so as~~ connection with any offer by the Company to ~~permit~~ purchase the ~~rights and obligations under this Article 4 to be exercised in the time and in the manner specified herein~~Notes upon a Fundamental Change. (g) Notwithstanding anything to the contrary herein, no Notes may be purchased by the Company at the option of Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the relevant Fundamental Change Purchase Date (except in the case of an acceleration resulting from the Company’s default in the payment of the Fundamental Change Purchase Price with respect to such Notes).

Appears in 1 contract

Samples: First Supplemental Indenture (Medivation, Inc.)

Right to Require Repurchase upon a Fundamental Change. (a) If a Fundamental Change ~~occurs~~occurs at any time, then each Holder ~~of Notes~~ shall have the ~~option~~ right, at such Holder’s option, to require the Company to ~~purchase for cash~~ repurchase all ~~or any portion~~ of such Holder’s Notes or any portion of the principal amount thereof that is equal to $~~1,000,~~ 1,000 or an integral multiple of $~~1,000~~1.00 in excess thereof, for cash on the ~~day of~~ date specified by the ~~Company’s choosing~~ Company that is not less than 20 or and not more than 35 Business Days after the ~~occurrence~~ date of ~~such~~ the Fundamental ~~Change, subject to extension to comply with applicable law~~ Change Repurchase Right Notice (such ~~day~~specified date, the “Fundamental Change ~~Purchase~~ Repurchase Date”), ) at a ~~purchase~~ repurchase price ~~(the “Fundamental Change Purchase Price”)~~ equal to 100% of the principal amount ~~of the Notes to be purchased~~thereof, ~~plus~~ together with accrued and unpaid ~~Interest to~~ interest thereon to, but ~~excluding~~ excluding, the Fundamental Change ~~Purchase Date (~~Repurchase Date, unless ~~the~~ such Fundamental Change ~~Purchase~~ Repurchase Date is falls after the Close of Business on a Regular Record Date and on or prior to the Close of Business on the corresponding Interest Payment Date, in which case the Company shall pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to which it relates, in which case Interest accrued to the Interest Payment Date shall be paid to Holders of the Notes as of the preceding Record Date, and the purchase price the Company is required to pay to the Holder ~~surrendering~~ of record at the ~~Note for purchase shall be equal to 100%~~ Close of Business on the ~~principal amount of such Note subject to purchase and shall not include any accrued and unpaid Interest~~corresponding Regular Record Date (the “Fundamental Change Repurchase Price”). ~~Purchases~~ Repurchases of Notes under this Section ~~4.01~~ 15.01 shall be made, at the option of the Holder thereof, upon: (i) delivery to the ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ by a Holder (if Notes are Global Notes, in accordance with Applicable Procedures) of a duly completed notice ~~(the “Fundamental Change Purchase Notice”)~~ in the form set forth on the ~~reverse~~ form of Note attached hereto as Exhibit A (the ~~Note during the period~~ “Fundamental Change Repurchase Notice”) between the ~~delivery~~ date of the Fundamental Change ~~notice~~ Repurchase Right Notice and the ~~close~~ Close of ~~business~~ Business on the ~~second~~ Business Day immediately preceding the Fundamental Change ~~Purchase Date (the “Fundamental Change Expiration Time”)~~Repurchase Date; and (ii) delivery or book-entry transfer of the Notes to the ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ at any time ~~after delivery~~ on or before the Close of Business on the Business Day immediately preceding the Fundamental Change ~~Purchase Notice~~ Repurchase Date (together with all necessary endorsements~~, if the Notes are Physical Securities) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company~~), such delivery being a condition to receipt by the Holder of the Fundamental Change ~~Purchase~~ Repurchase Price therefor~~. The~~ ; provided that such Fundamental Change ~~Purchase~~ Repurchase Price shall be so paid pursuant to this Section 15.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. If such Notes are Definitive Notes, each Fundamental Change Repurchase Notice shall state: (A1) ~~if certificated,~~ the certificate numbers of Notes to be delivered for ~~purchase~~repurchase; (B2) the portion of the principal amount of Notes to be ~~purchased~~repurchased, which must be $1,000 or an integral multiple of $1.00 in excess thereof; and (C3) that the Notes are to be ~~purchased~~ repurchased by the Company pursuant to the applicable provisions of the Notes and ~~the~~ this Indenture~~; provided, however, that if the~~ . If such Notes are Global ~~Securities~~Notes, the Fundamental Change ~~Purchase~~ Repurchase Notice ~~must~~ shall comply with ~~applicable Depository procedures~~the Applicable Procedures. ~~The~~ Any purchase by the Company contemplated pursuant to the provisions of this Section 15.01 shall be ~~required to purchase, pursuant to subsection (d), Notes that have been validly surrendered and not withdrawn on~~ consummated by the delivery of the Fundamental Change ~~Purchase~~ Repurchase Price to be received by the Holder promptly following the later of the Fundamental Change Repurchase Date ~~pursuant to subsection (c)~~ and the time of ~~this Section 4.01~~the book-entry transfer or delivery of the Note. The ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ shall promptly notify the Company of the receipt by it of any Fundamental Change ~~Purchase~~ Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of ~~subsection (c) of this~~ Section ~~4.01~~15.01(c). Any Note that is to be ~~purchased~~ repurchased only in part shall ~~be, if certificated,~~ be surrendered to the Trustee (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 by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the ~~unpurchased~~ unrepurchased portion of the principal of the Note so surrendered, or, if a Global Security, the Trustee, or the custodian at the direction of the Trustee, shall make a notation on such Global Security as to the reduction in the principal amount represented thereby for the purchased portion of the principal of the Note. (ba) ~~The~~ After the occurrence of a Fundamental Change, but on or before the 10th calendar day following the Effective Date of such Fundamental Change, the Company shall ~~give~~ provide to all Holders and the Trustee and ~~each Holder~~ Paying Agent a ~~written~~ notice of (the “Fundamental Change ~~within 5 Business Days after~~ Repurchase Right Notice”), in the manner provided for in Section 15.01, of the occurrence of such Fundamental Change ~~(such notice~~and of the repurchase right, if any, at the “option of the Holders, arising as a result thereof. Each Fundamental Change Purchase Right Notice”) and issue a press release announcing the occurrence of such Fundamental Change (and make the press release available on its website). Such notice shall be either by first class mail or, with respect to Global Notes, in accordance with the Depository’s notice procedures. The Fundamental Change Purchase Repurchase Right Notice shall ~~specify (if applicable):~~specify: (i) the events causing the Fundamental Change; (ii) the ~~effective~~ date of the Fundamental ~~Change and whether the Fundamental Change is a Make-Whole Adjustment Event~~Change; (iii) the last date on which a Holder may exercise the ~~purchase right pursuant to this Article 4~~repurchase right; (iv) the Fundamental Change ~~Purchase Price~~Repurchase Date; (v) the Fundamental Change ~~Purchase Date~~Repurchase Price; (vi) the Conversion Rate and any adjustments to the Conversion Rate, and the procedures required for exercise of the Holder’s conversion right; (vii) the procedures required for exercise of the purchase option upon the Fundamental Change, and for withdrawal of a Fundamental Change Purchase Notice; and (viii) the name and address of the Paying Agent and the Conversion Agent; (vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate, if any; (viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; (ix) that the Holder must exercise the repurchase right on or prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”); (x) that the Holder shall have the right to withdraw any Notes surrendered for repurchase prior to the Fundamental Change Expiration Time; and (xi) the procedures that Holders must follow to require the Company to repurchase their Notes. Simultaneously with providing the Fundamental Change Repurchase Right Notice, the Company shall publish this above information on the Company’s website or through such other public medium as the Company may use at that time. No failure of the Company to give the foregoing notices or publish the foregoing information and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section ~~4.01~~15.01. (cb) A Fundamental Change ~~Purchase~~ Repurchase Notice may be ~~withdrawn,~~ withdrawn in whole or in ~~part,~~ part by means of a written notice of withdrawal delivered to the Paying Agent ~~in accordance with the Fundamental Change Purchase Right Notice~~ at any time ~~until~~ prior to the Fundamental Change Expiration Time, specifying: (i) if such Notes are Definitive Notes, the certificate numbers of the withdrawn Notes, (ii) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted~~, (ii) if certificated Notes have been issued~~, ~~the certificate numbers of the withdrawn Notes,~~and (iii) the principal amount, if any, of such ~~Note~~ Notes that ~~remains~~ remain subject to the original Fundamental Change ~~Purchase~~ Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $~~1,000~~1.00 in excess thereof; provided, however, that if the Notes are ~~not in certificated form~~Global Notes, ~~the withdrawal~~ such notice must comply with ~~appropriate procedures of the Depository~~any Applicable Procedures. (dc) ~~On or prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date, the~~ The Company shall deposit with the ~~Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own~~ Paying Agent, ~~set aside~~in accordance with Section 4.01, ~~segregate and hold in trust)~~ an amount of money sufficient to ~~purchase~~ repurchase on the Fundamental Change ~~Purchase~~ Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change ~~Purchase~~ Repurchase Price. Subject to receipt of funds and/or Notes by the ~~Trustee (or other~~ Paying ~~Agent appointed by the Company)~~Agent, payment for ~~each Note~~ Notes surrendered for ~~purchase~~ repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made on promptly after the later of (x) the Fundamental Change ~~Purchase~~ Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change ~~Purchase~~ Repurchase Price in this Section ~~4.01~~15.01), and (y) the time of book-entry transfer or the delivery of such Note to the ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ by the Holder thereof in the manner required by this Section ~~4.01~~ 15.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the ~~Security~~ Register; provided, however, that payments to the ~~Depository~~ Depositary shall be made by wire transfer of immediately available funds to the account of the ~~Depository~~ Depositary or its nominee. The ~~Trustee (or other~~ Paying ~~Agent)~~ Agent shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change ~~Purchase~~ Repurchase Price. (ed) If Subject to a Holder’s right to receive interest on the ~~Trustee (or other~~ related Interest Payment Date where the Fundamental Change Repurchase Date falls between a Regular Record Date and the Interest Payment Date to which it relates, if the Paying Agent ~~appointed by the Company)~~ holds money sufficient to ~~purchase~~ repurchase on the Fundamental Change ~~Purchase~~ Repurchase Date all of the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change ~~Purchase~~ Repurchase Date, then on and after the Fundamental Change ~~Purchase~~ Repurchase Date (i) such Notes shall cease to be ~~Outstanding~~ outstanding and ~~Interest, if any,~~ interest shall cease to accrue on such Notes, in either case, whether or not book-entry transfer of the Notes has been made ~~and whether~~ or ~~not~~ the Notes have been delivered to the ~~Trustee or~~ Paying Agent and (ii) all other rights of the Holders of such Notes shall ~~terminate,~~ terminate other than ~~(A)~~ the right to receive the Fundamental Change ~~Purchase~~ Repurchase Price ~~upon delivery or transfer of the Notes~~and previously accrued and unpaid interest, ~~and (B)~~ if the Fundamental Change Purchase Date falls after a Record Date and on or prior to the related Interest Payment Date the right of the Holder on such Record Date to receive the Interest payable on such Interest Payment Dateany. (fe) In connection with any offer to purchase the Notes pursuant to this Article 4, the Company shall: (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act to the extent any such rules are applicable; (ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and (iii) otherwise comply with all applicable federal and state securities laws, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner specified herein. (g) Notwithstanding anything to the contrary herein, no No Notes may be ~~purchased by the Company~~ repurchased on any date at the option of Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the ~~relevant~~ applicable Fundamental Change ~~Purchase~~ Repurchase Date (except in the case of an acceleration resulting from a default by the ~~Company’s default~~ Company in the payment of the applicable Fundamental Change ~~Purchase~~ Repurchase Price with respect to such Notes). (f) In connection with any repurchase offer pursuant to a Fundamental Change Repurchase Notice, the Company shall, if required: (i) comply with the provisions of Rule 13e-4 under the Exchange Act, Rule 14e-1 under the Exchange Act and any other tender offer rules under the Exchange Act that may then be applicable; (ii) file a Schedule TO (or any successor schedule, form or report) to the extent required or any other required schedule under the Exchange Act; and (iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes. SIGNATURES Dated as of August 31, 2017 A.M. CASTLE & CO. By: /s/ Marec X. Xxxxx Name: Marec X. Xxxxx Title: EVP, General Counsel, Secretary & Chief Administrative Officer TOTAL PLASTICS, INC. By: /s/ Marec X. Xxxxx Name: Marec X. Xxxxx Title: Vice President & Secretary A. M. CASTLE & CO. (CANADA) INC. By: /s/ Marec X. Xxxxx Name: Marec X. Xxxxx Title: Secretary HY-ALLOY STEELS COMPANY By: /s/ Marec X. Xxxxx Name: Marec X. Xxxxx Title: Vice President & Secretary KEYSTONE SERVICE, INC. By: /s/ Marec X. Xxxxx Name: Marec X. Xxxxx Title: Secretary KEYSTONE TUBE COMPANY, LLC By: /s/ Marec X. Xxxxx Name: Marec X. Xxxxx Title: Secretary CASTLE METALS DE MEXICO, S.A. DE C.V. By: /s/ Marec X. Xxxxx Name: Marec X. Xxxxx Title: Vice President CASTLE METALS DE MEXICALI, S.A. DE C.V. By: /s/ Marec X. Xxxxx Name: Marec X. Xxxxx Title: Vice President WILMINGTON SAVINGS FUND SOCIETY, FSB, not in its individual capacity but solely as Trustee By: /s/ Xxxxxxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx Title: Vice President WILMINGTON SAVINGS FUND SOCIETY, FSB, not in its individual capacity but solely as Collateral Agent By: /s/ Xxxxxxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx Title: Vice President [FORM OF NOTE] [Insert the Global Note Legend, if applicable] [Insert the Private Placement Legend, if applicable] No. [ ] $[ ] [as revised by the Schedule of Increases and Decreases in Global Note attached hereto]* A. M. Castle & Co., a Maryland corporation (the “Company”), promises to pay to [ ] or registered assigns, the principal sum of [ ] DOLLARS[, as revised by the Schedule of Increases and Decreases in Global Note attached hereto,]* Insert in Global Note. on August 31, 2022. Interest Payment Dates: March 31, June 30, September 30 and December 31 Record Dates: March 15, June 15, September 15 and December 15 Dated: A. M. CASTLE & CO. By: Name: Title: This is one of the Notes referred to in the within-mentioned Indenture: Wilmington Savings Fund Society, FSB, As Trustee By: Authorized Signatory Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

Appears in 1 contract

Samples: Indenture (Castle a M & Co)

Right to Require Repurchase upon a Fundamental Change. (a) If a Fundamental Change ~~occurs~~occurs at any time, then each Holder ~~of Notes~~ shall have the ~~option~~ right, at such Holder’s option, to require the Company to ~~purchase for cash~~ repurchase all ~~or any portion~~ of such Holder’s Notes or any portion of the principal amount thereof that is equal to $~~1,000,~~ 1,000 or an integral multiple of $~~1,000~~1,000 in excess thereof, for cash on the ~~day of~~ date (the ~~Company’s choosing~~ “Fundamental Change Repurchase Date”) specified by the Company that is not less than 20 or and not more than 35 Business Days after the ~~occurrence~~ date of ~~such Fundamental Change, subject to extension to comply with applicable law (such day,~~ the “Fundamental Change ~~Purchase Date”),~~ Repurchase Right Notice at a ~~purchase~~ repurchase price ~~(the “Fundamental Change Purchase Price”)~~ equal to 100% of the principal amount ~~of the Notes to be purchased~~thereof, ~~plus~~ together with accrued and unpaid ~~Interest to~~ interest (including any Additional Interest) thereon to, but ~~excluding~~ excluding, the Fundamental Change ~~Purchase Date (~~Repurchase Date, unless ~~the~~ such Fundamental Change ~~Purchase~~ Repurchase Date is falls after the Close of Business on a Regular Record Date and on or prior to the Close of Business on the corresponding Interest Payment Date, in which case the Company shall pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to which it relates, in which case Interest accrued to the Interest Payment Date shall be paid to Holders of the Notes as of the preceding Record Date, and the purchase price the Company is required to pay to the Holder ~~surrendering~~ of record at the ~~Note for purchase shall be equal to 100%~~ Close of Business on the ~~principal amount of such Note subject to purchase and shall not include any accrued and unpaid Interest~~corresponding Regular Record Date (the “Fundamental Change Repurchase Price”). ~~Purchases~~ Repurchases of Notes under this Section ~~4.01~~ 3.01 shall be made, at the option of the Holder thereof, upon: (i) delivery to the ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ by a Holder (if Notes are Global Notes, in accordance with Applicable Procedures) of a duly completed notice (the “Fundamental Change ~~Purchase~~ Repurchase Notice”) in the form set forth on the ~~reverse~~ form of ~~the~~ Note ~~during the period~~ attached hereto as Exhibit A between the ~~delivery~~ date of the Fundamental Change ~~notice~~ Repurchase Right Notice and the ~~close~~ Close of ~~business~~ Business on the ~~second~~ Business Day immediately preceding the Fundamental Change ~~Purchase Date (the “Fundamental Change Expiration Time”)~~Repurchase Date; and (ii) delivery or book-entry transfer of the Notes to the ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ at any time ~~after delivery~~ on or before the Close of Business on the Business Day immediately preceding the Fundamental Change ~~Purchase Notice~~ Repurchase Date (together with all necessary endorsements~~, if the Notes are Physical Securities) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company~~), such delivery being a condition to receipt by the Holder of the Fundamental Change ~~Purchase~~ Repurchase Price therefor~~. The~~ ; provided that such Fundamental Change ~~Purchase~~ Repurchase Price shall be so paid pursuant to this Section 3.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. If such Notes are Certificated Notes, each Fundamental Change Repurchase Notice shall state: (A1) ~~if certificated,~~ the certificate numbers of Notes to be delivered for ~~purchase~~repurchase; (B2) the portion of the principal amount of Notes to be ~~purchased~~repurchased, which must be $1,000 or an integral multiple of $1,000 in excess thereof; and (C3) that the Notes are to be ~~purchased~~ repurchased by the Company pursuant to the applicable provisions of the Notes and ~~the~~ this Indenture~~; provided, however, that if the~~ . If such Notes are Global ~~Securities~~Notes, the Fundamental Change ~~Purchase~~ Repurchase Notice ~~must~~ shall comply with ~~applicable Depository procedures~~the Applicable Procedures. ~~The~~ Any purchase by the Company contemplated pursuant to the provisions of this Section 3.01 shall be ~~required to purchase, pursuant to subsection (d), Notes that have been validly surrendered and not withdrawn on~~ consummated by the delivery of the Fundamental Change ~~Purchase~~ Repurchase Price to be received by the Holder promptly following the later of the Fundamental Change Repurchase Date ~~pursuant to subsection (c)~~ and the time of ~~this Section 4.01~~the book-entry transfer or delivery of the Note. The ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ shall promptly notify the Company of the receipt by it of any Fundamental Change ~~Purchase~~ Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of ~~subsection (c) of this~~ Section ~~4.01~~3.01(c). Any Note that is to be ~~purchased~~ repurchased only in part shall ~~be, if certificated,~~ be surrendered to the Trustee (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 his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the ~~unpurchased~~ unrepurchased portion of the principal of the Note so surrendered, or, if a Global Security, the Trustee, or the custodian at the direction of the Trustee, shall make a notation on such Global Security as to the reduction in the principal amount represented thereby for the purchased portion of the principal of the Note. (b) ~~The~~ After the occurrence of a Fundamental Change, but on or before the 10th calendar day following the Effective Date of such Fundamental Change, the Company shall ~~give~~ provide to all Holders and the Trustee and ~~each Holder~~ Paying Agent a ~~written~~ notice of (the “Fundamental Change ~~within 5 Business Days after~~ Repurchase Right Notice”), in the manner provided for in Section 14.01, of the occurrence of such Fundamental Change ~~(such notice~~and of the repurchase right, if any, at the “option of the Holders, arising as a result thereof. Each Fundamental Change Purchase Right Notice”) and issue a press release announcing the occurrence of such Fundamental Change (and make the press release available on its website). Such notice shall be either by first class mail or, with respect to Global Notes, in accordance with the Depository’s notice procedures. The Fundamental Change Purchase Repurchase Right Notice shall ~~specify (if applicable):~~specify: (i) the events causing the Fundamental Change and whether such Fundamental Change is also a Make-Whole Fundamental Change; (ii) the ~~effective~~ date of the Fundamental ~~Change and whether the Fundamental Change is a Make-Whole Adjustment Event~~Change; (iii) the last date on which a Holder may exercise the ~~purchase right pursuant to this Article 4~~repurchase right; (iv) the Fundamental Change ~~Purchase Price~~Repurchase Date; (v) the Fundamental Change ~~Purchase Date~~Repurchase Price; (vi) the Conversion Rate and any adjustments to the Conversion Rate, and the procedures required for exercise of the Holder’s conversion right; (vii) the procedures required for exercise of the purchase option upon the Fundamental Change, and for withdrawal of a Fundamental Change Purchase Notice; and (viii) the name and address of the Paying Agent and the Conversion Agent; (vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate (including, if applicable, the number of Additional Shares), if any; (viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; (ix) that the Holder must exercise the repurchase right on or prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”); (x) that the Holder shall have the right to withdraw any Notes surrendered for repurchase prior to the Fundamental Change Expiration Time; and (xi) the procedures that Holders must follow to require the Company to repurchase their Notes. Simultaneously with providing the Fundamental Change Repurchase Right Notice, the Company shall publish this above information on the Company’s website or through such other public medium as the Company may use at that time. No failure of the Company to give the foregoing notices or publish the foregoing information and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section ~~4.01~~3.01. (c) A Fundamental Change ~~Purchase~~ Repurchase Notice may be ~~withdrawn,~~ withdrawn in whole or in ~~part,~~ part by means of a written notice of withdrawal delivered to the Paying Agent ~~in accordance with the Fundamental Change Purchase Right Notice~~ at any time ~~until~~ prior to the Fundamental Change Expiration Time, specifying: (i) if such Notes are Certificated Notes, the certificate numbers of the withdrawn Notes, (ii) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted~~, (ii) if certificated Notes have been issued~~, ~~the certificate numbers of the withdrawn Notes,~~and (iii) the principal amount, if any, of such ~~Note~~ Notes that ~~remains~~ remain subject to the original Fundamental Change ~~Purchase~~ Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $~~1,000~~1,000 in excess thereof; provided, however, that if the Notes are ~~not in certificated form~~Global Notes, ~~the withdrawal~~ such notice must comply with ~~appropriate procedures of the Depository~~any Applicable Procedures. (d) ~~On or prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date, the~~ The Company shall deposit with the ~~Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own~~ Paying Agent, ~~set aside~~in accordance with Section 4.01, ~~segregate and hold in trust)~~ an amount of money sufficient to ~~purchase~~ repurchase on the Fundamental Change ~~Purchase~~ Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change ~~Purchase~~ Repurchase Price. Subject to receipt of funds and/or Notes by the ~~Trustee (or other~~ Paying ~~Agent appointed by the Company)~~Agent, payment for ~~each Note~~ Notes surrendered for ~~purchase~~ repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made on promptly after the later of (x) the Fundamental Change ~~Purchase~~ Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change ~~Purchase~~ Repurchase Price in this Section ~~4.01~~3.01), and (y) the time of book-entry transfer or the delivery of such Note to the ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ by the Holder thereof in the manner required by this Section ~~4.01~~ 3.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the ~~Security~~ Register; provided, however, that payments to the ~~Depository~~ Depositary shall be made by wire transfer of immediately available funds to the account of the ~~Depository~~ Depositary or its nominee. The Trustee ~~(or other Paying Agent)~~ shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change ~~Purchase~~ Repurchase Price. (e) If Subject to a Holder’s right to receive interest on the ~~Trustee (or other~~ related Interest Payment Date where the Fundamental Change Repurchase Date falls between a Regular Record Date and the Interest Payment Date to which it relates, if the Paying Agent ~~appointed by the Company)~~ holds money sufficient to ~~purchase~~ repurchase on the Fundamental Change ~~Purchase~~ Repurchase Date all of the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change ~~Purchase~~ Repurchase Date, then on and after the Fundamental Change ~~Purchase~~ Repurchase Date (i) such Notes shall cease to be ~~Outstanding~~ outstanding and ~~Interest, if any,~~ interest shall cease to accrue on such Notes, in either case, whether or not book-entry transfer of the Notes has been made ~~and whether~~ or ~~not~~ the Notes have been delivered to the ~~Trustee or~~ Paying Agent and (ii) all other rights of the Holders of such Notes shall ~~terminate,~~ terminate other than ~~(A)~~ the right to receive the Fundamental Change ~~Purchase~~ Repurchase Price ~~upon delivery or transfer of the Notes~~and previously accrued and unpaid interest, ~~and (B)~~ if the Fundamental Change Purchase Date falls after a Record Date and on or prior to the related Interest Payment Date the right of the Holder on such Record Date to receive the Interest payable on such Interest Payment Dateany. (f) In connection with any offer to purchase the Notes pursuant to this Article 4, the Company shall: (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act to the extent any such rules are applicable; (ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and (iii) otherwise comply with all applicable federal and state securities laws, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner specified herein. (g) Notwithstanding anything to the contrary herein, no No Notes may be ~~purchased by the Company~~ repurchased on any date at the option of Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the ~~relevant~~ applicable Fundamental Change ~~Purchase~~ Repurchase Date (except in the case of an acceleration resulting from a default by the ~~Company’s default~~ Company in the payment of the applicable Fundamental Change ~~Purchase~~ Repurchase Price with respect to such Notes). (g) In connection with any repurchase offer pursuant to a Fundamental Change Repurchase Notice, the Company shall, if required: (i) comply with the provisions of Rule 13e-4 under the Exchange Act, Rule 14e-1 under the Exchange Act and any other tender offer rules under the Exchange Act that may then be applicable; (ii) file a Schedule TO (or any successor schedule, form or report) to the extent required or any other required schedule under the Exchange Act; and (iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes.

Appears in 1 contract

Samples: Indenture (Castle a M & Co)

Right to Require Repurchase upon a Fundamental Change. (a) If a Fundamental Change occurs, each Holder ~~of Notes~~ shall have the ~~option~~ right, at the Holder’s option, to require the Company to ~~purchase~~ repurchase, and upon the exercise of such right the Company shall repurchase, for cash some or all ~~or any portion~~ of such Holder’s Notes not theretofore called for redemption, or any portion of the Principal Amount thereof that is equal to U.S. $~~1,000,~~ 1,000 or an any integral multiple of U.S. $~~1,000, on~~ 1,000 in excess thereof (provided that no single Note may be repurchased in part unless the ~~day~~ portion of the ~~Company’s choosing that is not less than 20 or more than 35 Business Days after the occurrence~~ Principal Amount of such ~~Fundamental Change, subject~~ Note to ~~extension~~ be outstanding after such repurchase is equal to ~~comply with applicable law (such day, the “Fundamental Change Purchase Date”~~U.S. $1,000 or integral multiples of U.S. $1,000 in excess thereof)~~, at~~ . The Company shall offer a ~~purchase price~~ payment (the “Fundamental Change ~~Purchase~~ Repurchase Price”) equal to 100% of the ~~principal amount~~ Principal Amount of the Notes to be ~~purchased,~~ repurchased plus any accrued and unpaid ~~Interest~~ interest to but excluding the Fundamental Change ~~Purchase Date (~~Repurchase Date, unless ~~the~~ such Fundamental Change ~~Purchase~~ Repurchase Date ~~is after~~ falls during a Record Date Period, in which case the Company will pay the full amount of accrued and unpaid interest payable on ~~or prior to the~~ such Interest Payment Date to ~~which it relates~~the holder of record at the close of business on the corresponding Regular Record Date. Whenever in this Indenture there is a reference, in ~~which case Interest accrued~~ any context, to the ~~Interest Payment Date~~ Principal Amount of any Note as of any time, such reference shall be ~~paid~~ deemed to ~~Holders of the Notes as of the preceding Record Date, and the purchase price the Company is required to pay~~ include reference to the ~~Holder surrendering the Note for purchase shall be equal to 100% of the principal amount~~ Fundamental Change Repurchase Price payable in respect of such Note ~~subject~~ to ~~purchase~~ the extent that such Fundamental Change Repurchase Price is, was or would be so payable at such time, and express mention of the Fundamental Change Repurchase Price in any provision of this Indenture shall not ~~include~~ be construed as excluding the Fundamental Change Repurchase Price in those provisions of this Indenture when such express mention is not made. (b) Within 20 days following any ~~accrued~~ Fundamental Change, the Company shall mail or cause to be mailed a notice to each Holder (with a copy to the Trustee) describing the transaction or transactions that constitute the Fundamental Change and ~~unpaid Interest). Purchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon~~stating: (i) ~~delivery to~~ the ~~Trustee (or other Paying Agent appointed~~ repurchase date, which shall be a date specified by the ~~Company) by a Holder of a duly completed~~ Company that is not less than 20 nor more than 35 Business Days from the date such notice is mailed (the “Fundamental Change ~~Purchase~~ Repurchase Date”); (ii) the time by which the repurchase right must be exercised, which shall be the close of business on the Fundamental Change Repurchase Date; (iii) the Fundamental Change Repurchase Price; (iv) a description of the procedure which a Holder must follow to exercise a repurchase right, and the place or places where, or procedures by which, such Notes are to be surrendered for payment of the Fundamental Change Repurchase Price; (v) that on the Fundamental Change Repurchase Date the Fundamental Change Repurchase Price will become due and payable upon each such Note designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date; (vi) the Conversion Rate then in effect, the date on which the right to convert the Notes to be repurchased will terminate (which shall be the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date) and the place or places where, or procedures by which, such Notes may be surrendered for conversion; (vii) the place or places that the Note with the “Option of Holder to Purchase” as specified on the reverse of the Note shall be delivered; (viii) that any Note not tendered shall continue to accrue interest; (ix) that Holders shall be entitled to withdraw their election if the Paying Agent receives, prior to 5:00 p.m., New York City time on the Fundamental Change Repurchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the Principal Amount of Notes delivered for purchase, and a written statement that (a) states such Holder is withdrawing its election to have the Notes purchased, (b) if certificated Notes have been issued, states the certificate number of the withdrawn Notes, (c) if the Notes are not certificated, contains such statements as required by the Depositary and (d) states the Principal Amount, if any, that remains subject to the Repurchase Notice; and (x) that Holders whose Notes are being purchased only in part shall be issued new Notes equal in Principal Amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $1,000 in Principal Amount or an integral multiple thereof. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions or other provisions of this Section 11.01 are inconsistent with applicable law, such law shall govern. (c) To exercise a repurchase right pursuant to this Section 11.01, a Holder shall deliver to the Trustee on or before the Fundamental Change Repurchase Date (i) written notice (the “Repurchase Notice”) of the Holder’s exercise of such right, which notice, if the Note is certificated, shall be in the form set forth on the reverse of the Note ~~during~~ duly completed or, if the ~~period between~~ Note is represented by a Global Note, shall set forth the ~~delivery~~ name of the Holder, the Principal Amount of the Notes to be repurchased (and, if any Note is to repurchased in part, the certificate number thereof, the portion of the Principal Amount thereof to be repurchased and the name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby and (ii) the Notes with respect to which the repurchase right is being exercised. Holders may withdraw such election at any time prior to 5:00 p.m., New York City time on the Fundamental Change ~~notice and~~ Repurchase Date. The right of the Holder to convert the Notes with respect to which the repurchase right is being exercised shall continue until 5:00 p.m., New York City time on the Business Day prior to the Fundamental Change Repurchase Date. (d) In the event a repurchase right shall be exercised in accordance with the terms hereof, on the Fundamental Change Repurchase Date, the Company shall accept for payment all Notes or portions thereof properly tendered, deposit with or pay or cause to be paid to the Trustee the Fundamental Change Repurchase Price in cash for payment by the Trustee to the Holder on the Fundamental Change Repurchase Date; provided, however, that installments of interest that mature on or prior to the Fundamental Change Repurchase Date shall be payable in cash to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the close of business on the ~~second Business Day immediately preceding the Fundamental Change Purchase Date (the “Fundamental Change Expiration Time”)~~relevant Regular Record Date; ~~and (ii) delivery~~ and deliver or ~~book-entry transfer of the Notes~~ cause to be delivered to the Trustee (the Notes so accepted together with an Officers’ Certificate stating the aggregate Principal Amount of Notes or ~~other Paying Agent appointed~~ portions thereof being purchased by the Company. (e) at If any ~~time after delivery of the Fundamental Change Purchase Notice (together with all necessary endorsements, if the Notes are Physical Securities) at the Corporate Trust Office of the Trustee~~ Note (or ~~other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change Purchase Price therefor. The Fundamental Change Purchase Notice~~ portion thereof) surrendered for repurchase shall ~~state: (A) if certificated, the certificate numbers of Notes to~~ not be delivered for purchase; (B) the portion of the principal amount of Notes to be purchased, which must be $1,000 or an integral multiple thereof; and (C) that the Notes are to be purchased by the Company pursuant to the applicable provisions of the Notes and the Indenture; provided, however, that if the Notes are Global Securities, the Fundamental Change Purchase Notice must comply with applicable Depository procedures. The Company shall be required to purchase, pursuant to subsection (d), Notes that have been validly surrendered and not withdrawn so paid on the Fundamental Change ~~Purchase Date pursuant to subsection (c)~~ Repurchase Date, the Principal Amount of ~~this Section 4.01. The Trustee~~ such Note (or ~~other Paying Agent appointed~~ portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the ~~Company~~Fundamental Change Repurchase Date at the rate specified therein, and each Note shall remain convertible into Common Stock until the Principal Amount of such Note (or portion thereof, as the case may be) shall ~~promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice~~ have been paid or ~~written notice of withdrawal thereof in accordance with the provisions of subsection~~ duly provided for. (cf) ~~of this Section 4.01.~~ Any Note ~~that~~ which is to be ~~purchased~~ repurchased only in part shall ~~be, if certificated,~~ be surrendered to the Trustee (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 by, the Holder thereof or ~~his~~ its attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and ~~make available for delivery~~ mail (or cause to be transferred by book entry) to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate ~~principal amount~~ Principal Amount equal to and in exchange for the ~~unpurchased~~ unrepurchased portion of the ~~principal~~ Principal Amount of the Note so surrendered~~, or, if a Global Security,~~ ; provided that each such new Note shall be in Principal Amount of $1,000 or an integral multiple thereof. (g) All Notes delivered for repurchase shall be delivered to the ~~Trustee, or the custodian~~ Trustee to be canceled at the direction of the Trustee, which shall ~~make a notation on such Global Security as to the reduction in the principal amount represented thereby for the purchased portion~~ dispose of the ~~principal of the Note~~same as provided in Section 2.12. (bh) ~~The Company shall give the Trustee and each Holder a written notice~~ In connection with any purchase of the Fundamental Change within 5 Business Days after the occurrence of such Fundamental Change (such notice, the “Fundamental Change Purchase Right Notice”) and issue a press release announcing the occurrence of such Fundamental Change (and make the press release available on its website). Such notice shall be either by first class mail or, with respect to Global Notes, in accordance with the Depository’s notice procedures. The Fundamental Change Purchase Right Notice shall specify (if applicable): (i) the events causing the Fundamental Change; (ii) the effective date of the Fundamental Change and whether the Fundamental Change is a Make-Whole Adjustment Event; (iii) the last date on which a Holder may exercise the purchase right pursuant to this Article 4; (iv) the Fundamental Change Purchase Price; (v) the Fundamental Change Purchase Date; (vi) the Conversion Rate and any adjustments to the Conversion Rate, and the procedures required for exercise of the Holder’s conversion right; (vii) the procedures required for exercise of the purchase option upon the Fundamental Change, and for withdrawal of a Fundamental Change Purchase Notice; and (viii) the name and address of the Paying Agent and the Conversion Agent. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 4.01. (c) A Fundamental Change Purchase Notice may be withdrawn, in whole or in part, by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Purchase Right Notice at any time until the Fundamental Change Expiration Time, specifying: (i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, (ii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, (iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not in certificated form, the withdrawal notice must comply with appropriate procedures of the Depository. (d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date11.01, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to purchase on the Fundamental Change Purchase Date all of the Notes to be repurchased on such date at the Fundamental Change Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for each Note surrendered for purchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made on the later of (x) the Fundamental Change Purchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Purchase Price in this Section 4.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Security Register; provided, however, that payments to the Depository shall be made by wire transfer of immediately available funds to the account of the Depository or its nominee. The Trustee (or other Paying Agent) shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Purchase Price. (e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to purchase on the Fundamental Change Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Purchase Date, then on and after the Fundamental Change Purchase Date (i) such Notes shall cease to be Outstanding and Interest, if any, shall cease to accrue on such Notes, whether or not book-entry transfer of the Notes has been made and whether or not the Notes have been delivered to the Trustee or Paying Agent and (ii) all other rights of the Holders of such Notes shall terminate, other than (A) the right to receive the Fundamental Change Purchase Price upon delivery or transfer of the Notes, and (B) if the Fundamental Change Purchase Date falls after a Record Date and on or prior to the related Interest Payment Date the right of the Holder on such Record Date to receive the Interest payable on such Interest Payment Date. (f) In connection with any offer to purchase the Notes pursuant to this Article 4, the Company shall: (i) will comply with ~~the provisions of~~ Rule ~~13e-4, Rule 14e-1 and any other tender offer rules~~ 13e-4 under the Exchange Act to the extent ~~any such rules are applicable; (ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and (iii) otherwise comply with all~~ applicable ~~federal and state securities laws, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner specified herein~~at that time. (gi) ~~Notwithstanding anything to the contrary herein, no~~ No Notes may be purchased by the Company ~~at the option of Holders upon a Fundamental Change~~ pursuant to this Section 11.01 if the ~~principal amount~~ Principal Amount of the Notes has been accelerated, and such acceleration has not been ~~rescinded,~~ rescinded on or prior to ~~the relevant Fundamental Change Purchase Date (except in the case of an acceleration resulting from the Company’s default in the payment of the Fundamental Change Purchase Price with respect to~~ such ~~Notes)~~date.

Appears in 1 contract

Samples: Indenture (Charter Communications Inc /Mo/)

Right to Require Repurchase upon a Fundamental Change. (a1) ~~If a~~ In the event any Fundamental Change ~~occurs~~(as defined below) shall occur, each Holder of Notes shall have the ~~option~~ right (the “Fundamental Change Repurchase Right”), at such Holder’s option, to require the Company to ~~purchase for cash~~ repurchase all ~~or any portion~~ of such Holder’s Notes (or portions thereof that ~~is equal to $1,000, or an~~ are integral ~~multiple~~ multiples of $~~1,000~~1,000 in principal amount), on a date selected by the day of the Company’s choosing that is not less than 20 or more than 35 Business Days after the occurrence of such Fundamental Change, subject to extension to comply with applicable law (such day, the “Fundamental Change Purchase Date”), at a purchase price Company (the “Fundamental Change ~~Purchase Price~~Repurchase Date”), which Fundamental Change Repurchase Date shall be no later than 35 days, nor earlier than 20 days, after the date the Fundamental Change Notice (as defined below) is mailed in accordance with Section 8.2, at a price, payable in cash, equal to one hundred percent (100% %) of the principal amount of the Notes (or portions thereof) to be ~~purchased~~so repurchased, plus accrued and unpaid ~~Interest to~~ interest, if any, to, but ~~excluding~~ excluding, the Fundamental Change ~~Purchase~~ Repurchase Date (~~unless~~ the “Fundamental Change ~~Purchase~~ Repurchase Price”) (provided, that if such Fundamental Change Repurchase Date is after the close of business on a Record Date for the payment of an installment of interest and on or ~~prior to~~ before the related Interest Payment ~~Date to which it relates~~Date, ~~in which case Interest~~ then the accrued ~~to the~~ and unpaid interest, if any, to, but excluding, such Interest Payment Date shall be ~~paid to Holders of the Notes as of the preceding Record~~ paid, on such Interest Payment Date, ~~and the purchase price the Company is required to pay~~ to the Holder ~~surrendering~~ of record of such Notes at the ~~Note for purchase~~ close of business on such Record Date (without any surrender of such Notes by such Xxxxxx), the Fundamental Change Repurchase Price shall be equal to ~~100% of~~ the principal amount of ~~such Note~~ Notes subject to ~~purchase~~ repurchase pursuant to this Article VIII and the Holder surrendering such Notes for repurchase shall not ~~include~~ be entitled to any such accrued and unpaid ~~Interest). Purchases~~ interest unless such Xxxxxx was also the Holder of record of such Notes ~~under this Section 4.01 shall be made,~~ at the ~~option~~ close of ~~the Holder thereof~~business on such Record Date), upon: (i) delivery to the ~~Trustee~~ Company (if it is acting as its own Paying Agent), or ~~other~~ to a Paying Agent ~~appointed~~ designated by the ~~Company) by a Holder of a duly completed notice (the “Fundamental Change Purchase Notice”)~~ Company for such purpose in ~~the form set forth on the reverse of the Note during the period between the delivery of~~ the Fundamental Change ~~notice and~~ Notice, no later than the close of business on the ~~second~~ Business Day immediately preceding the Fundamental Change Repurchase Date, of a Purchase ~~Date (~~Notice, in the ~~“Fundamental Change Expiration Time”); and (ii) delivery or book-entry transfer of~~ form set forth in the Notes ~~to the Trustee (~~or any other ~~Paying Agent appointed by the Company) at any time after delivery~~ form of ~~the Fundamental Change Purchase Notice (together~~ written notice substantially similar thereto, in each case, duly completed and signed, with ~~all necessary endorsements~~appropriate signature guarantee, if the Notes are Physical Securities) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change Purchase Price therefor. The Fundamental Change Purchase Notice shall statestating: (A) ~~if certificated,~~ the certificate ~~numbers~~ number(s) of the Notes which the Holder will deliver to be ~~delivered for purchase~~repurchased, if such Notes are certificated; (B) ~~the portion of~~ the principal amount of Notes to be ~~purchased~~repurchased, which must be $1,000 or an integral multiple thereof; and (C) that ~~the~~ such principal amount of Notes are to be ~~purchased~~ repurchased pursuant to the terms and conditions specified in Article VIII of this Supplemental Indenture; and (ii) 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 Fundamental Change Notice, at any time after the delivery of such Purchase Notice, of such Notes (together with all necessary endorsements), such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor payable as herein provided upon repurchase pursuant to ~~the applicable provisions of the Notes and the Indenture;~~ this Article VIII (provided, however, that if the Holder of record of such Notes on the Record Date immediately preceding such Fundamental Change Repurchase Date need not surrender such Notes in order to be entitled to receive, on the relevant Interest Payment Date, the accrued and unpaid interest due thereon). If such Notes are ~~Global Securities~~held in book-entry form through the Depositary, the Purchase Notice shall comply with the Applicable Procedures. (2) Upon delivery of certificated Notes 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. (3) Notwithstanding anything herein to the contrary, any Holder that has delivered the Purchase Notice contemplated by this Section 8.1 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 Fundamental Change Notice shall have the right to withdraw such Purchase Notice ~~must comply with applicable Depository procedures. The Company shall be required~~ by delivery, at any time prior to ~~purchase, pursuant to subsection (d), Notes that have been validly surrendered and not withdrawn~~ the close of business on the Business Day immediately preceding the Fundamental Change ~~Purchase Date pursuant~~ Repurchase Date, of a written notice of withdrawal to ~~subsection~~ the Company (cif acting as its own Paying Agent) ~~of this~~ or the Paying Agent, which notice shall contain the information specified in Section ~~4.01.~~ 8.2(2)(xi). (4) The ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ shall promptly notify the Company of the receipt by it of any ~~Fundamental Change~~ Purchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any Note that is to be purchased only in part shall be, if certificated, surrendered to the Trustee (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 his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unpurchased portion of the principal of the Note so surrendered, or, if a Global Security, the Trustee, or the custodian at the direction of the Trustee, shall make a notation on such Global Security as to the reduction in the principal amount represented thereby for the purchased portion of the principal of the Notethereof. (b) The Company shall give the Trustee and each Holder a written notice of the Fundamental Change within 5 Business Days after the occurrence of such Fundamental Change (such notice, the “Fundamental Change Purchase Right Notice”) and issue a press release announcing the occurrence of such Fundamental Change (and make the press release available on its website). Such notice shall be either by first class mail or, with respect to Global Notes, in accordance with the Depository’s notice procedures. The Fundamental Change Purchase Right Notice shall specify (if applicable): (i) the events causing the Fundamental Change; (ii) the effective date of the Fundamental Change and whether the Fundamental Change is a Make-Whole Adjustment Event; (iii) the last date on which a Holder may exercise the purchase right pursuant to this Article 4; (iv) the Fundamental Change Purchase Price; (v) the Fundamental Change Purchase Date; (vi) the Conversion Rate and any adjustments to the Conversion Rate, and the procedures required for exercise of the Holder’s conversion right; (vii) the procedures required for exercise of the purchase option upon the Fundamental Change, and for withdrawal of a Fundamental Change Purchase Notice; and (viii) the name and address of the Paying Agent and the Conversion Agent. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 4.01. (c) A Fundamental Change Purchase Notice may be withdrawn, in whole or in part, by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Purchase Right Notice at any time until the Fundamental Change Expiration Time, specifying: (i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, (ii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, (iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not in certificated form, the withdrawal notice must comply with appropriate procedures of the Depository. (d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to purchase on the Fundamental Change Purchase Date all of the Notes to be repurchased on such date at the Fundamental Change Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for each Note surrendered for purchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made on the later of (x) the Fundamental Change Purchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Purchase Price in this Section 4.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Security Register; provided, however, that payments to the Depository shall be made by wire transfer of immediately available funds to the account of the Depository or its nominee. The Trustee (or other Paying Agent) shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Purchase Price. (e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to purchase on the Fundamental Change Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Purchase Date, then on and after the Fundamental Change Purchase Date (i) such Notes shall cease to be Outstanding and Interest, if any, shall cease to accrue on such Notes, whether or not book-entry transfer of the Notes has been made and whether or not the Notes have been delivered to the Trustee or Paying Agent and (ii) all other rights of the Holders of such Notes shall terminate, other than (A) the right to receive the Fundamental Change Purchase Price upon delivery or transfer of the Notes, and (B) if the Fundamental Change Purchase Date falls after a Record Date and on or prior to the related Interest Payment Date the right of the Holder on such Record Date to receive the Interest payable on such Interest Payment Date. (f) In connection with any offer to purchase the Notes pursuant to this Article 4, the Company shall: (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act to the extent any such rules are applicable; (ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and (iii) otherwise comply with all applicable federal and state securities laws, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner specified herein. (g) Notwithstanding anything to the contrary herein, no Notes may be purchased by the Company at the option of Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the relevant Fundamental Change Purchase Date (except in the case of an acceleration resulting from the Company’s default in the payment of the Fundamental Change Purchase Price with respect to such Notes).

Appears in 1 contract

Samples: First Supplemental Indenture (Epicor Software Corp)

Right to Require Repurchase upon a Fundamental Change. (a) If a Fundamental Change occurs, each Holder ~~of Notes~~ shall have the ~~option~~ right, at the Holder’s option, to require the Company to ~~purchase~~ repurchase, and upon the exercise of such right the Company shall repurchase, for cash some or all ~~or any portion~~ of such Holder’s Notes not theretofore called for redemption, or any portion of the Principal Amount thereof that is equal to U.S. $~~1,000,~~ 1,000 or an any integral multiple of U.S. $~~1,000, on~~ 1,000 in excess thereof (provided that no single Note may be repurchased in part unless the ~~day~~ portion of the ~~Company’s choosing that is not less than 20 or more than 35 Business Days after the occurrence~~ Principal Amount of such ~~Fundamental Change, subject~~ Note to ~~extension~~ be outstanding after such repurchase is equal to ~~comply with applicable law (such day, the “Fundamental Change Purchase Date”~~U.S. $1,000 or integral multiples of U.S. $1,000 in excess thereof)~~, at~~ . The Company shall offer a ~~purchase price~~ payment (the “Fundamental Change ~~Purchase~~ Repurchase Price”) equal to 100% of the ~~principal amount~~ Principal Amount of the Notes to be ~~purchased,~~ repurchased plus any accrued and unpaid ~~Interest~~ interest to but excluding the Fundamental Change ~~Purchase Date (~~Repurchase Date, unless ~~the~~ such Fundamental Change ~~Purchase~~ Repurchase Date is falls after a Regular Record Date and on or prior to the corresponding Interest Payment Date, in which case the Company will pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to ~~which it relates, in which case Interest accrued to~~ the ~~Interest Payment Date shall be paid to Holders~~ holder of the Notes as of the preceding Record Date, and the purchase price the Company is required to pay to the Holder surrendering the Note for purchase shall be equal to 100% of the principal amount of such Note subject to purchase and shall not include any accrued and unpaid Interest). Purchases of Notes under this Section 4.01 shall be made, record at the option of the Holder thereof, upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change Purchase Notice”) in the form set forth on the reverse of the Note during the period between the delivery of the Fundamental Change notice and the close of business on the ~~second~~ corresponding Regular Record Date. Whenever in this Indenture there is a reference, in any context, to the Principal Amount of any Note as of any time, such reference shall be deemed to include reference to the Fundamental Change Repurchase Price payable in respect of such Note to the extent that such Fundamental Change Repurchase Price is, was or would be so payable at such time, and express mention of the Fundamental Change Repurchase Price in any provision of this Indenture shall not be construed as excluding the Fundamental Change Repurchase Price in those provisions of this Indenture when such express mention is not made. (b) Within 20 days following any Fundamental Change, the Company shall mail or cause to be mailed a notice to each Holder (with a copy to the Trustee) describing the transaction or transactions that constitute the Fundamental Change and stating: (i) the repurchase date, which shall be a date specified by the Company that is not less than 20 nor more than 35 Business Days from the date such notice is mailed (the “Fundamental Change Repurchase Date”); (ii) the time by which the repurchase right must be exercised, which shall be the close of business on the Fundamental Change Repurchase Date; (iii) the Fundamental Change Repurchase Price; (iv) a description of the procedure which a Holder must follow to exercise a repurchase right, and the place or places where, or procedures by which, such Notes are to be surrendered for payment of the Fundamental Change Repurchase Price; (v) that on the Fundamental Change Repurchase Date the Fundamental Change Repurchase Price will become due and payable upon each such Note designated by the Holder to be repurchased, and that interest thereon shall cease to accrue on and after said date; (vi) the Conversion Rate then in effect, the date on which the right to convert the Notes to be repurchased will terminate (which shall be the close of business on the Business Day immediately preceding the Fundamental Change ~~Purchase Date~~ Repurchase Date) and the place or places where, or procedures by which, such Notes may be surrendered for conversion; (vii) the place or places that the Note with the “Option of Holder to Purchase” as specified on the reverse of the Note shall be delivered; (viii) that any Note not tendered shall continue to accrue interest; (ix) that Holders shall be entitled to withdraw their election if the Paying Agent receives, prior to 5:00 p.m., New York City time on the Fundamental Change ~~Expiration Time”)~~Repurchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the Principal Amount of Notes delivered for purchase, and a written statement that (a) states such Holder is withdrawing its election to have the Notes purchased, (b) if certificated Notes have been issued, states the certificate number of the withdrawn Notes, (c) if the Notes are not certificated, contains such statements as required by the Depositary and (d) states the Principal Amount, if any, that remains subject to the repurchase notice; and (iix) ~~delivery or book-entry transfer~~ that Holders whose Notes are being purchased only in part shall be issued new Notes equal in Principal Amount to the unpurchased portion of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change Purchase Notice (together with all necessary endorsements, if the Notes are Physical Securities) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change Purchase Price therefor. The Fundamental Change Purchase Notice shall state: (A) if certificated, the certificate numbers of Notes to be delivered for purchase; (B) the portion of the principal amount of Notes to be purchasedsurrendered, which unpurchased portion must be equal to $1,000 in Principal Amount or an integral multiple thereof~~; and~~. No failure of the Company to give the foregoing notices or defect therein shall limit any Holder’s right to exercise a repurchase right or affect the validity of the proceedings for the repurchase of Notes. If any of the foregoing provisions or other provisions of this Section 11.01 are inconsistent with applicable law, such law shall govern. (Cc) ~~that the Notes are to be purchased by the Company~~ To exercise a repurchase right pursuant to this Section 11.01, a Holder shall deliver to the ~~applicable provisions~~ Trustee on or before the Fundamental Change Repurchase Date (i) written notice of the Holder’s exercise of such right, which notice shall set forth the name of the Holder, the Principal Amount of the Notes to be repurchased (and, if any Note is to repurchased in part, the certificate number thereof, the portion of the Principal Amount thereof to be repurchased and the ~~Indenture~~name of the Person in which the portion thereof to remain outstanding after such repurchase is to be registered) and a statement that an election to exercise the repurchase right is being made thereby and (ii) the Notes with respect to which the repurchase right is being exercised. Holders may withdraw such election at any time prior to 5:00 p.m., New York City time on the Fundamental Change Repurchase Date. The right of the Holder to convert the Notes with respect to which the repurchase right is being exercised shall continue until 5:00 p.m., New York City time on the Business Day prior to the Fundamental Change Repurchase Date. (d) In the event a repurchase right shall be exercised in accordance with the terms hereof, on the Fundamental Change Repurchase Date, the Company shall accept for payment all Notes or portions thereof properly tendered, deposit with or pay or cause to be paid to the Trustee the Fundamental Change Repurchase Price in cash for payment by the Trustee to the Holder on the Fundamental Change Repurchase Date; provided, however, that ~~if the Notes are Global Securities,~~ installments of interest that mature on or prior to the Fundamental Change ~~Purchase Notice must comply with applicable Depository procedures. The Company~~ Repurchase Date shall be ~~required~~ payable in cash to ~~purchase~~the Holders of such Notes, ~~pursuant~~ or one or more Predecessor Notes, registered as such at the close of business on the relevant Regular Record Date; and deliver or cause to ~~subsection~~ be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate Principal Amount of Notes or portions thereof being purchased by the Company. (~~d), Notes that have been validly~~ e) If any Note (or portion thereof) surrendered ~~and~~ for repurchase shall not ~~withdrawn~~ be so paid on the Fundamental Change ~~Purchase Date pursuant to subsection (c)~~ Repurchase Date, the Principal Amount of ~~this Section 4.01. The Trustee~~ such Note (or ~~other Paying Agent appointed~~ portion thereof, as the case may be) shall, until paid, bear interest to the extent permitted by applicable law from the ~~Company~~Fundamental Change Repurchase Date at the rate specified therein, and each Note shall remain convertible into Common Stock until the Principal Amount of such Note (or portion thereof, as the case may be) shall ~~promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice~~ have been paid or ~~written notice of withdrawal thereof in accordance with the provisions of subsection~~ duly provided for. (cf) ~~of this Section 4.01.~~ Any Note ~~that~~ which is to be ~~purchased~~ repurchased only in part shall ~~be, if certificated,~~ be surrendered to the Trustee (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 by, the Holder thereof or ~~his~~ its attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and ~~make available for delivery~~ mail (or cause to be transferred by book entry) to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate ~~principal amount~~ Principal Amount equal to and in exchange for the ~~unpurchased~~ unrepurchased portion of the ~~principal~~ Principal Amount of the Note so surrendered~~, or, if a Global Security,~~ ; provided that each such new Note shall be in Principal Amount of $1,000 or an integral multiple thereof. (g) All Notes delivered for repurchase shall be delivered to the ~~Trustee, or the custodian~~ Trustee to be canceled at the direction of the Trustee, which shall ~~make a notation on such Global Security as to the reduction in the principal amount represented thereby for the purchased portion~~ dispose of the ~~principal of the Note~~same as provided in Section 2.12. (bh) ~~The Company shall give the Trustee and each Holder a written notice~~ In connection with any purchase of the Fundamental Change within 5 Business Days after the occurrence of such Fundamental Change (such notice, the “Fundamental Change Purchase Right Notice”) and issue a press release announcing the occurrence of such Fundamental Change (and make the press release available on its website). Such notice shall be either by first class mail or, with respect to Global Notes, in accordance with the Depository’s notice procedures. The Fundamental Change Purchase Right Notice shall specify (if applicable): (i) the events causing the Fundamental Change; (ii) the effective date of the Fundamental Change and whether the Fundamental Change is a Make-Whole Adjustment Event; (iii) the last date on which a Holder may exercise the purchase right pursuant to this Article 4; (iv) the Fundamental Change Purchase Price; (v) the Fundamental Change Purchase Date; (vi) the Conversion Rate and any adjustments to the Conversion Rate, and the procedures required for exercise of the Holder’s conversion right; (vii) the procedures required for exercise of the purchase option upon the Fundamental Change, and for withdrawal of a Fundamental Change Purchase Notice; and (viii) the name and address of the Paying Agent and the Conversion Agent. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 4.01. (c) A Fundamental Change Purchase Notice may be withdrawn, in whole or in part, by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Purchase Right Notice at any time until the Fundamental Change Expiration Time, specifying: (i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, (ii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, (iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not in certificated form, the withdrawal notice must comply with appropriate procedures of the Depository. (d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date11.01, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to purchase on the Fundamental Change Purchase Date all of the Notes to be repurchased on such date at the Fundamental Change Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for each Note surrendered for purchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made on the later of (x) the Fundamental Change Purchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Purchase Price in this Section 4.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Security Register; provided, however, that payments to the Depository shall be made by wire transfer of immediately available funds to the account of the Depository or its nominee. The Trustee (or other Paying Agent) shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Purchase Price. (e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to purchase on the Fundamental Change Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Purchase Date, then on and after the Fundamental Change Purchase Date (i) such Notes shall cease to be Outstanding and Interest, if any, shall cease to accrue on such Notes, whether or not book-entry transfer of the Notes has been made and whether or not the Notes have been delivered to the Trustee or Paying Agent and (ii) all other rights of the Holders of such Notes shall terminate, other than (A) the right to receive the Fundamental Change Purchase Price upon delivery or transfer of the Notes, and (B) if the Fundamental Change Purchase Date falls after a Record Date and on or prior to the related Interest Payment Date the right of the Holder on such Record Date to receive the Interest payable on such Interest Payment Date. (f) In connection with any offer to purchase the Notes pursuant to this Article 4, the Company shall: (i) will comply with ~~the provisions of~~ Rule ~~13e-4, Rule 14e-1 and any other tender offer rules~~ 13e-4 under the Exchange Act to the extent ~~any such rules are applicable; (ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and (iii) otherwise comply with all~~ applicable ~~federal and state securities laws, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner specified herein~~at that time. (gi) ~~Notwithstanding anything to the contrary herein, no~~ No Notes may be purchased by the Company ~~at the option of Holders upon a Fundamental Change~~ pursuant to this Section 11.01 if the ~~principal amount~~ Principal Amount of the Notes has been accelerated, and such acceleration has not been ~~rescinded,~~ rescinded on or prior to ~~the relevant Fundamental Change Purchase Date (except in the case of an acceleration resulting from the Company’s default in the payment of the Fundamental Change Purchase Price with respect to~~ such ~~Notes)~~date.

Appears in 1 contract

Samples: Indenture (Charter Communications Inc /Mo/)

Right to Require Repurchase upon a Fundamental Change. ~~(a) If~~ In the event that a Fundamental Change ~~occurs~~(as hereinafter defined) shall occur, then each Holder ~~of Notes~~ shall have the ~~option~~ right, at the Holder’s option, to require the Company to ~~purchase~~ repurchase, and upon the exercise of such right the Company shall repurchase, all of such Holder’s Securities not theretofore converted or called for ~~cash all~~ redemption, or any portion of ~~such Holder’s Notes~~ the aggregate principal amount thereof that is equal to ~~$1,000,~~ U.S.$1,000 or an any integral multiple of ~~$1,000~~U.S.$1,000 in excess thereof (provided that no single Security may be repurchased in part unless the portion of the aggregate principal amount of such Security to be Outstanding after such repurchase is equal to U.S.$1,000 or integral multiples of U.S.$1,000 in excess thereof), on the day of the Company’s choosing that is not less than 20 or more than 35 Business Days after the occurrence of such Fundamental Change, subject to extension to comply with applicable law (such day, the “Fundamental Change Purchase Date”), at a purchase price date (the “Fundamental Change ~~Purchase Price~~Repurchase Date”) that is 30 Business Days after the date of the Fundamental Change Company Notice (as defined in Section 14.2) at a purchase price equal to 100% of the principal amount of the ~~Notes~~ Securities to be ~~purchased~~repurchased plus interest (including Additional Interest and Special Interest, ~~plus~~ if any) accrued ~~and~~ but unpaid ~~Interest to~~ to, but ~~excluding~~ excluding, the Fundamental Change Purchase Date (unless the Fundamental Change Purchase Date is after a Record Date and on or prior to the Interest Payment Date to which it relates, in which case Interest accrued to the Interest Payment Date shall be paid to Holders of the Notes as of the preceding Record Date, and the purchase price the Company is required to pay to the Holder surrendering the Note for purchase shall be equal to 100% of the principal amount of such Note subject to purchase and shall not include any accrued and unpaid Interest). Purchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change Purchase Notice”) in the form set forth on the reverse of the Note during the period between the delivery of the Fundamental Change notice and the close of business on the second Business Day immediately preceding the Fundamental Change Purchase Repurchase Date (the “Fundamental Change ~~Expiration Time~~Repurchase Price”); and (ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change Purchase Notice (together with all necessary endorsements, if the Notes are Physical Securities) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change Purchase Price therefor. The Fundamental Change Purchase Notice shall state: (A) if certificated, the certificate numbers of Notes to be delivered for purchase; (B) the portion of the principal amount of Notes to be purchased, which must be $1,000 or an integral multiple thereof; and (C) that the Notes are to be purchased by the Company pursuant to the applicable provisions of the Notes and the Indenture; provided, however, that if the Notes are Global Securities, the Fundamental Change Purchase Notice must comply with applicable Depository procedures. The Company shall be required to purchase, pursuant to subsection (d), Notes that have been validly surrendered and not withdrawn installments of interest on ~~the Fundamental Change Purchase Date pursuant to subsection (c) of this Section 4.01. The Trustee (~~Securities whose Stated Maturity is on or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any Note that is to be purchased only in part shall be, if certificated, surrendered to the Trustee (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 his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unpurchased portion of the principal of the Note so surrendered, or, if a Global Security, the Trustee, or the custodian at the direction of the Trustee, shall make a notation on such Global Security as to the reduction in the principal amount represented thereby for the purchased portion of the principal of the Note. (b) The Company shall give the Trustee and each Holder a written notice of the Fundamental Change within 5 Business Days after the occurrence of such Fundamental Change (such notice, the “Fundamental Change Purchase Right Notice”) and issue a press release announcing the occurrence of such Fundamental Change (and make the press release available on its website). Such notice shall be either by first class mail or, with respect to Global Notes, in accordance with the Depository’s notice procedures. The Fundamental Change Purchase Right Notice shall specify (if applicable): (i) the events causing the Fundamental Change; (ii) the effective date of the Fundamental Change and whether the Fundamental Change is a Make-Whole Adjustment Event; (iii) the last date on which a Holder may exercise the purchase right pursuant to this Article 4; (iv) the Fundamental Change Purchase Price; (v) the Fundamental Change Purchase Date; (vi) the Conversion Rate and any adjustments to the Conversion Rate, and the procedures required for exercise of the Holder’s conversion right; (vii) the procedures required for exercise of the purchase option upon the Fundamental Change, and for withdrawal of a Fundamental Change Purchase Notice; and (viii) the name and address of the Paying Agent and the Conversion Agent. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 4.01. (c) A Fundamental Change Purchase Notice may be withdrawn, in whole or in part, by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Purchase Right Notice at any time until the Fundamental Change Expiration Time, specifying: (i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, (ii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, (iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not in certificated form, the withdrawal notice must comply with appropriate procedures of the Depository. (d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to purchase on the Fundamental Change Purchase Date all of the Notes to be repurchased on such date at the Fundamental Change Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for each Note surrendered for purchase (and not withdrawn) prior to the Fundamental Change ~~Expiration Time~~ Repurchase Date shall be made on the later of (x) the Fundamental Change Purchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Purchase Price in this Section 4.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 by mailing checks for the amount payable to the Holders of such ~~Notes entitled thereto~~ Securities, or one or more Predecessor Securities, registered as ~~they~~ such on the relevant Record Date according to their terms and the provisions of Section 3.7. Such right to require the repurchase of the Securities shall ~~appear in~~ not continue after a discharge of the ~~Security Register; provided, however, that payments~~ Company from its obligations with respect to the ~~Depository~~ Securities in accordance with Article IV, unless a Fundamental Change shall have occurred prior to such discharge. Whenever in this Indenture (including Sections 2.2, 3.1, 5.1(1) and 5.8) there is a reference, in any context, to the principal of any Security as of any time, such reference shall be ~~made by wire transfer of immediately available funds~~ deemed to include reference to the ~~account~~ Fundamental Change Repurchase Price payable in respect of ~~the Depository or its nominee. The Trustee (or other Paying Agent) shall, promptly after~~ such ~~payment and upon written demand by the Company, return~~ Security to the ~~Company any funds in excess~~ extent that such Fundamental Change Repurchase Price is, was or would be so payable at such time, and express mention of the Fundamental Change ~~Purchase Price. (e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to purchase on~~ Repurchase Price in any provision of this Indenture shall not be construed as excluding the Fundamental Change Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Purchase Date, then on and after the Fundamental Change Purchase Date (i) such Notes shall cease to be Outstanding and Interest, if any, shall cease to accrue on such Notes, whether or not book-entry transfer of the Notes has been made and whether or not the Notes have been delivered to the Trustee or Paying Agent and (ii) all other rights of the Holders of such Notes shall terminate, other than (A) the right to receive the Fundamental Change Purchase Repurchase Price upon delivery or transfer of the Notes, and (B) if the Fundamental Change Purchase Date falls after a Record Date and on or prior to the related Interest Payment Date the right of the Holder on such Record Date to receive the Interest payable on such Interest Payment Date. (f) In connection with any offer to purchase the Notes pursuant to this Article 4, the Company shall: (i) comply with the in those provisions of ~~Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act to the extent any~~ this Indenture when such rules are applicable; (ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and (iii) otherwise comply with all applicable federal and state securities laws, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner specified hereinexpress mention is not made. (g) Notwithstanding anything to the contrary herein, no Notes may be purchased by the Company at the option of Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the relevant Fundamental Change Purchase Date (except in the case of an acceleration resulting from the Company’s default in the payment of the Fundamental Change Purchase Price with respect to such Notes).

Appears in 1 contract

Samples: Indenture (Alesco Financial Inc)

Right to Require Repurchase upon a Fundamental Change. (a) If a Fundamental Change occurs, each Holder of Notes shall have the option to require the Company to purchase for cash all or any portion of such Holder’s Notes that is equal to $1,000, or an integral multiple of $1,000, on the day of the Company’s choosing that is not less than 20 or more than 35 Business Days after the ~~occurrence of such~~ date the Company shall provide Holders with the Fundamental ~~Change~~Change Purchase Right Notice, subject to extension to comply with applicable law (such day, the “Fundamental Change Purchase Date”), at a purchase price (the “Fundamental Change Purchase Price”) equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid Interest to but excluding the Fundamental Change Purchase Date (unless the Fundamental Change Purchase Date is after a Record Date and on or prior to the Interest Payment Date to which it relates, in which case Interest accrued to the Interest Payment Date shall be paid to Holders of the Notes as of ~~the~~ such preceding Record Date, and the ~~purchase price~~ Fundamental Change Purchase Price the Company is required to pay to the Holder surrendering the Note for purchase shall be equal to 100% of the principal amount of such Note subject to purchase and shall not include any accrued and unpaid Interest). Purchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change Purchase Notice”) in the form set forth on the reverse of the Note during the period between the delivery of the Fundamental Change ~~notice~~ Purchase Right Notice and the close of business on the second Business Day immediately preceding the Fundamental Change Purchase Date (the “Fundamental Change Expiration Time”); and (ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change Purchase Notice (together with all necessary ~~endorsements,~~ endorsements if the Notes are Physical Securities) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change Purchase Price therefor. The Fundamental Change Purchase Notice shall state: (A) if ~~certificated~~Physical Securities, the certificate numbers of Notes to be delivered for purchase; (B) the portion of the principal amount of Notes to be purchased, which must be $1,000 or an integral multiple thereof; and (C) that the Notes are to be purchased by the Company pursuant to the applicable provisions of the Notes and the Indenture; provided, however, that if the Notes are Global Securities, the Fundamental Change Purchase Notice must comply with applicable Depository procedures. The Company shall be required to purchase, pursuant to subsection (d), Notes that have been validly surrendered and not withdrawn on the Fundamental Change Purchase Date pursuant to subsection (c) of this Section 4.01. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any Note that is to be purchased only in part shall be, if ~~certificated~~a Physical Security, surrendered to the Trustee (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 by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unpurchased portion of the principal of the Note so surrendered, or, if a Global Security, the Trustee, or the custodian at the direction of the Trustee, shall make a notation on such Global Security as to the reduction in the principal amount represented thereby for the purchased portion of the principal of the Note. (b) The Company shall give the Trustee and each Holder a written notice of the Fundamental Change within 5 five Business Days after the occurrence of such Fundamental Change (such notice, the “Fundamental Change Purchase Right Notice”) and issue a press release announcing the occurrence of such Fundamental Change (and make the press release available on its website). Such ~~notice~~ Fundamental Change Purchase Right Notice shall be delivered either by first class mail or, with respect to Global ~~Notes~~Securities, in accordance with the Depository’s notice procedures. The Fundamental Change Purchase Right Notice shall specify (if applicable): (i) the events causing the Fundamental Change; (ii) the effective date of the Fundamental Change and whether the Fundamental Change is a Make-Whole ~~Adjustment Event~~Fundamental Change; (iii) the last date on which a Holder may exercise the purchase right pursuant to this Article 4; (iv) the Fundamental Change Purchase Price; (v) the Fundamental Change Purchase Date; (vi) the Conversion Rate and any adjustments to the Conversion Rate, and the procedures required for exercise of the Holder’s conversion right; (vii) the procedures required for exercise of the purchase option upon the Fundamental Change, and for withdrawal of a Fundamental Change Purchase Notice; and (viii) the name and address of the Paying Agent and the Conversion Agent. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 4.01. (c) A Fundamental Change Purchase Notice may be withdrawn, in whole or in part, by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Purchase Right Notice at any time until the Fundamental Change Expiration Time, specifying: (i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, (ii) if ~~certificated Notes have been issued~~Physical Securities, the certificate numbers of the withdrawn Notes, (iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not ~~in certificated form~~Physical Securities, the withdrawal notice must comply with appropriate procedures of the Depository. (d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to purchase on the Fundamental Change Purchase Date all of the Notes to be repurchased on such date at the Fundamental Change Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for each Note surrendered for purchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made on the later of (x) the Fundamental Change Purchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Purchase Price in this Section 4.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section ~~4.01~~ 4.01, by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Security Register; provided, however, that payments to the Depository shall be made by wire transfer of immediately available funds to the account of the Depository or its nominee. The Trustee (or other Paying Agent) shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change Purchase Price. (e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to purchase on the Fundamental Change Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Purchase Date, then on and after the Fundamental Change Purchase Date (i) such Notes shall cease to be Outstanding and Interest, if any, shall cease to accrue on such Notes, whether or not book-entry transfer of the Notes has been made and whether or not the Notes have been delivered to the Trustee or Paying ~~Agent~~ Agent, and (ii) all other rights of the Holders of such Notes shall terminate, other than (A) the right to receive the Fundamental Change Purchase Price upon delivery or transfer of the Notes, and (B) if the Fundamental Change Purchase Date falls after a Record Date and on or prior to the related Interest Payment Date the right of the Holder on such Record Date to receive the Interest payable on such Interest Payment Date. (f) In connection with any offer to purchase the Notes pursuant to this Article 4, the Company shall: (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act to the extent any such rules are applicable; (ii) file a Schedule TO or any successor or similar ~~schedule, if required,~~ schedule under the Exchange Act, if required; and (iii) otherwise comply with all applicable federal and state securities laws, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner specified herein. (g) Notwithstanding anything to the contrary herein, no Notes may be purchased by the Company at the option of Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the relevant Fundamental Change Purchase Date (except in the case of an acceleration resulting from the Company’s default in the payment of the Fundamental Change Purchase Price with respect to such Notes).

Appears in 1 contract

Samples: First Supplemental Indenture (Quidel Corp /De/)

Right to Require Repurchase upon a Fundamental Change. ~~(a) If~~ In the event that a Fundamental Change ~~occurs~~(as hereinafter defined) shall occur, then each Holder ~~of Notes~~ shall have the ~~option~~ right, at the Holder’s option, to require the Company to ~~purchase for cash~~ repurchase, and upon the exercise of such right the Company shall repurchase, all ~~or any portion~~ of such Holder’s Notes not theretofore converted or called for redemption, or any portion of the aggregate principal amount thereof that is equal to ~~$1,000,~~ U.S.$1,000 or an any integral multiple of ~~$1,000~~U.S.$1,000 in excess thereof (provided that no single Note may be repurchased in part unless the portion of the aggregate principal amount of such Note to be Outstanding after such repurchase is equal to U.S.$1,000 or integral multiples of U.S.$1,000 in excess thereof), on the day of the Company’s choosing that is not less than 20 or more than 35 Business Days after the occurrence of such Fundamental Change, subject to extension to comply with applicable law (such day, the “Fundamental Change Purchase Date”), at a purchase price date (the “Fundamental Change ~~Purchase Price~~Repurchase Date”) that is 30 Business Days after the date of the Fundamental Change Company Notice (as defined in Section 10.2) at a purchase price equal to 100% of the aggregate principal amount of the Notes to be ~~purchased~~repurchased plus interest accrued but unpaid to, ~~plus accrued and unpaid Interest to~~ but ~~excluding~~ excluding, the Fundamental Change Purchase Date (unless the Fundamental Change Purchase Date is after a Record Date and on or prior to the Interest Payment Date to which it relates, in which case Interest accrued to the Interest Payment Date shall be paid to Holders of the Notes as of the preceding Record Date, and the purchase price the Company is required to pay to the Holder surrendering the Note for purchase shall be equal to 100% of the principal amount of such Note subject to purchase and shall not include any accrued and unpaid Interest). Purchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change Purchase Notice”) in the form set forth on the reverse of the Note during the period between the delivery of the Fundamental Change notice and the close of business on the second Business Day immediately preceding the Fundamental Change Purchase Repurchase Date (the “Fundamental Change ~~Expiration Time~~Repurchase Price”); and (ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change Purchase Notice (together with all necessary endorsements, if the Notes are Physical Securities) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change Purchase Price therefor. The Fundamental Change Purchase Notice shall state: (A) if certificated, the certificate numbers of Notes to be delivered for purchase; (B) the portion of the principal amount of Notes to be purchased, which must be $1,000 or an integral multiple thereof; and (C) that the Notes are to be purchased by the Company pursuant to the applicable provisions of the Notes and the Indenture; provided, however, that ~~if the~~ installments of interest on Notes are Global Securities, the Fundamental Change Purchase Notice must comply with applicable Depository procedures. The Company shall be required to purchase, pursuant to subsection (d), Notes that have been validly surrendered and not withdrawn whose Stated Maturity is on ~~the Fundamental Change Purchase Date pursuant to subsection (c) of this Section 4.01. The Trustee (~~or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any Note that is to be purchased only in part shall be, if certificated, surrendered to the Trustee (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 his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unpurchased portion of the principal of the Note so surrendered, or, if a Global Security, the Trustee, or the custodian at the direction of the Trustee, shall make a notation on such Global Security as to the reduction in the principal amount represented thereby for the purchased portion of the principal of the Note. (b) The Company shall give the Trustee and each Holder a written notice of the Fundamental Change within 5 Business Days after the occurrence of such Fundamental Change (such notice, the “Fundamental Change Purchase Right Notice”) and issue a press release announcing the occurrence of such Fundamental Change (and make the press release available on its website). Such notice shall be either by first class mail or, with respect to Global Notes, in accordance with the Depository’s notice procedures. The Fundamental Change Purchase Right Notice shall specify (if applicable): (i) the events causing the Fundamental Change; (ii) the effective date of the Fundamental Change and whether the Fundamental Change is a Make-Whole Adjustment Event; (iii) the last date on which a Holder may exercise the purchase right pursuant to this Article 4; (iv) the Fundamental Change Purchase Price; (v) the Fundamental Change Purchase Date; (vi) the Conversion Rate and any adjustments to the Conversion Rate, and the procedures required for exercise of the Holder’s conversion right; (vii) the procedures required for exercise of the purchase option upon the Fundamental Change, and for withdrawal of a Fundamental Change Purchase Notice; and (viii) the name and address of the Paying Agent and the Conversion Agent. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 4.01. (c) A Fundamental Change Purchase Notice may be withdrawn, in whole or in part, by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Purchase Right Notice at any time until the Fundamental Change Expiration Time, specifying: (i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, (ii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, (iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change Purchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not in certificated form, the withdrawal notice must comply with appropriate procedures of the Depository. (d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to purchase on the Fundamental Change Purchase Date all of the Notes to be repurchased on such date at the Fundamental Change Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for each Note surrendered for purchase (and not withdrawn) prior to the Fundamental Change ~~Expiration Time~~ Repurchase Date shall be made on the later of (x) the Fundamental Change Purchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change Purchase Price in this Section 4.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 by mailing checks for the amount payable to the Holders of such Notes, or one or more Predecessor Securities, registered as such on the relevant Record Date according to their terms and the provisions of Section 1.2(3) of this Supplemental Indenture. Such right to require the repurchase of the Notes ~~entitled thereto as they~~ shall ~~appear in~~ not continue after a discharge of the ~~Security Register; provided, however, that payments~~ Company from its obligations with respect to the ~~Depository~~ Notes in accordance with Article V of the Indenture, unless a Fundamental Change shall have occurred prior to such discharge. Whenever in this Supplemental Indenture there is a reference, in any context, to the principal of any Note as of any time, such reference shall be ~~made by wire transfer of immediately available funds~~ deemed to include reference to the ~~account~~ Fundamental Change Repurchase Price payable in respect of ~~the Depository or its nominee. The Trustee (or other Paying Agent) shall, promptly after~~ such ~~payment and upon written demand by the Company, return~~ Note to the ~~Company any funds in excess~~ extent that such Fundamental Change Repurchase Price is, was or would be so payable at such time, and express mention of the Fundamental Change ~~Purchase Price. (e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to purchase on~~ Repurchase Price in any provision of this Supplemental Indenture shall not be construed as excluding the Fundamental Change Purchase Date all the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change Purchase Date, then on and after the Fundamental Change Purchase Date (i) such Notes shall cease to be Outstanding and Interest, if any, shall cease to accrue on such Notes, whether or not book-entry transfer of the Notes has been made and whether or not the Notes have been delivered to the Trustee or Paying Agent and (ii) all other rights of the Holders of such Notes shall terminate, other than (A) the right to receive the Fundamental Change Purchase Repurchase Price upon delivery or transfer of the Notes, and (B) if the Fundamental Change Purchase Date falls after a Record Date and on or prior to the related Interest Payment Date the right of the Holder on such Record Date to receive the Interest payable on such Interest Payment Date. (f) In connection with any offer to purchase the Notes pursuant to this Article 4, the Company shall: (i) comply with the in those provisions of ~~Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act to the extent any~~ this Supplemental Indenture when such rules are applicable; (ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and (iii) otherwise comply with all applicable federal and state securities laws, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner specified hereinexpress mention is not made. (g) Notwithstanding anything to the contrary herein, no Notes may be purchased by the Company at the option of Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the relevant Fundamental Change Purchase Date (except in the case of an acceleration resulting from the Company’s default in the payment of the Fundamental Change Purchase Price with respect to such Notes).

Appears in 1 contract

Samples: First Supplemental Indenture (Franklin Bank Corp)

Right to Require Repurchase upon a Fundamental Change. (a) If a Fundamental Change ~~occurs~~occurs at any time, then each Holder ~~of Notes~~ shall have the ~~option~~ right, at such Holder’s option, to require the Company to ~~purchase for cash~~ repurchase all ~~or any portion~~ of such Holder’s Notes or any portion of the principal amount thereof that is equal to $~~1,000,~~ 1,000 or an integral multiple of $~~1,000~~1.00 in excess thereof, for cash on the ~~day of~~ date specified by the ~~Company’s choosing~~ Company that is not less than 20 or and not more than 35 Business Days after the ~~occurrence~~ date of ~~such~~ the Fundamental ~~Change, subject to extension to comply with applicable law~~ Change Repurchase Right Notice (such ~~day~~specified date, the “Fundamental Change ~~Purchase~~ Repurchase Date”), ) at a ~~purchase~~ repurchase price ~~(the “Fundamental Change Purchase Price”)~~ equal to 100% of the principal amount ~~of the Notes to be purchased~~thereof, ~~plus~~ together with accrued and unpaid ~~Interest to~~ interest thereon to, but ~~excluding~~ excluding, the Fundamental Change ~~Purchase Date (~~Repurchase Date, unless ~~the~~ such Fundamental Change ~~Purchase~~ Repurchase Date is falls after the Close of Business on a Regular Record Date and on or prior to the Close of Business on the corresponding Interest Payment Date, in which case the Company shall pay the full amount of accrued and unpaid interest payable on such Interest Payment Date to which it relates, in which case Interest accrued to the Interest Payment Date shall be paid to Holders of the Notes as of the preceding Record Date, and the purchase price the Company is required to pay to the Holder ~~surrendering~~ of record at the ~~Note for purchase shall be equal to 100%~~ Close of Business on the ~~principal amount of such Note subject to purchase and shall not include any accrued and unpaid Interest~~corresponding Regular Record Date (the “Fundamental Change Repurchase Price”). ~~Purchases~~ Repurchases of Notes under this Section ~~4.01~~ 15.01 shall be made, at the option of the Holder thereof, upon: (i) delivery to the ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ by a Holder (if Notes are Global Notes, in accordance with Applicable Procedures) of a duly completed notice ~~(the “Fundamental Change Purchase Notice”)~~ in the form set forth on the ~~reverse~~ form of Note attached hereto as Exhibit A (the ~~Note during the period~~ “Fundamental Change Repurchase Notice”) between the ~~delivery~~ date of the Fundamental Change ~~notice~~ Repurchase Right Notice and the ~~close~~ Close of ~~business~~ Business on the ~~second~~ Business Day immediately preceding the Fundamental Change ~~Purchase Date (the “Fundamental Change Expiration Time”)~~Repurchase Date; and (ii) delivery or book-entry transfer of the Notes to the ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ at any time ~~after delivery~~ on or before the Close of Business on the Business Day immediately preceding the Fundamental Change ~~Purchase Notice~~ Repurchase Date (together with all necessary endorsements~~, if the Notes are Physical Securities) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company~~), such delivery being a condition to receipt by the Holder of the Fundamental Change ~~Purchase~~ Repurchase Price therefor~~. The~~ ; provided that such Fundamental Change ~~Purchase~~ Repurchase Price shall be so paid pursuant to this Section 15.01 only if the Note so delivered to the Trustee (or other Paying Agent appointed by the Company) shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. If such Notes are Definitive Notes, each Fundamental Change Repurchase Notice shall state: (A1) ~~if certificated,~~ the certificate numbers of Notes to be delivered for ~~purchase~~repurchase; (B2) the portion of the principal amount of Notes to be ~~purchased~~repurchased, which must be $1,000 or an integral multiple of $1.00 in excess thereof; and (C3) that the Notes are to be ~~purchased~~ repurchased by the Company pursuant to the applicable provisions of the Notes and ~~the~~ this Indenture~~; provided, however, that if the~~ . If such Notes are Global ~~Securities~~Notes, the Fundamental Change ~~Purchase~~ Repurchase Notice ~~must~~ shall comply with ~~applicable Depository procedures~~the Applicable Procedures. ~~The~~ Any purchase by the Company contemplated pursuant to the provisions of this Section 15.01 shall be ~~required to purchase, pursuant to subsection (d), Notes that have been validly surrendered and not withdrawn on~~ consummated by the delivery of the Fundamental Change ~~Purchase~~ Repurchase Price to be received by the Holder promptly following the later of the Fundamental Change Repurchase Date ~~pursuant to subsection (c)~~ and the time of ~~this Section 4.01~~the book-entry transfer or delivery of the Note. The ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ shall promptly notify the Company of the receipt by it of any Fundamental Change ~~Purchase~~ Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of ~~subsection (c) of this~~ Section ~~4.01~~15.01(c). Any Note that is to be ~~purchased~~ repurchased only in part shall ~~be, if certificated,~~ be surrendered to the Trustee (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 by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the ~~unpurchased~~ unrepurchased portion of the principal of the Note so surrendered, or, if a Global Security, the Trustee, or the custodian at the direction of the Trustee, shall make a notation on such Global Security as to the reduction in the principal amount represented thereby for the purchased portion of the principal of the Note. (b) ~~The~~ After the occurrence of a Fundamental Change, but on or before the 10th calendar day following the Effective Date of such Fundamental Change, the Company shall ~~give~~ provide to all Holders and the Trustee and ~~each Holder~~ Paying Agent a ~~written~~ notice of (the “Fundamental Change ~~within 5 Business Days after~~ Repurchase Right Notice”), in the manner provided for in Section 15.01, of the occurrence of such Fundamental Change ~~(such notice~~and of the repurchase right, if any, at the “option of the Holders, arising as a result thereof. Each Fundamental Change Purchase Right Notice”) and issue a press release announcing the occurrence of such Fundamental Change (and make the press release available on its website). Such notice shall be either by first class mail or, with respect to Global Notes, in accordance with the Depository’s notice procedures. The Fundamental Change Purchase Repurchase Right Notice shall ~~specify (if applicable):~~specify: (i) the events causing the Fundamental Change; (ii) the ~~effective~~ date of the Fundamental ~~Change and whether the Fundamental Change is a Make-Whole Adjustment Event~~Change; (iii) the last date on which a Holder may exercise the ~~purchase right pursuant to this Article 4~~repurchase right; (iv) the Fundamental Change ~~Purchase Price~~Repurchase Date; (v) the Fundamental Change ~~Purchase Date~~Repurchase Price; (vi) the Conversion Rate and any adjustments to the Conversion Rate, and the procedures required for exercise of the Holder’s conversion right; (vii) the procedures required for exercise of the purchase option upon the Fundamental Change, and for withdrawal of a Fundamental Change Purchase Notice; and (viii) the name and address of the Paying Agent and the Conversion Agent; (vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate, if any; (viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; (ix) that the Holder must exercise the repurchase right on or prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Repurchase Date (the “Fundamental Change Expiration Time”); (x) that the Holder shall have the right to withdraw any Notes surrendered for repurchase prior to the Fundamental Change Expiration Time; and (xi) the procedures that Holders must follow to require the Company to repurchase their Notes. Simultaneously with providing the Fundamental Change Repurchase Right Notice, the Company shall publish this above information on the Company’s website or through such other public medium as the Company may use at that time. No failure of the Company to give the foregoing notices or publish the foregoing information and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section ~~4.01~~15.01. (c) A Fundamental Change ~~Purchase~~ Repurchase Notice may be ~~withdrawn,~~ withdrawn in whole or in ~~part,~~ part by means of a written notice of withdrawal delivered to the Paying Agent ~~in accordance with the Fundamental Change Purchase Right Notice~~ at any time ~~until~~ prior to the Fundamental Change Expiration Time, specifying: (i) if such Notes are Definitive Notes, the certificate numbers of the withdrawn Notes, (ii) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted~~, (ii) if certificated Notes have been issued~~, ~~the certificate numbers of the withdrawn Notes,~~and (iii) the principal amount, if any, of such ~~Note~~ Notes that ~~remains~~ remain subject to the original Fundamental Change ~~Purchase~~ Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $~~1,000~~1.00 in excess thereof; provided, however, that if the Notes are ~~not in certificated form~~Global Notes, ~~the withdrawal~~ such notice must comply with ~~appropriate procedures of the Depository~~any Applicable Procedures. (d) ~~On or prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date, the~~ The Company shall deposit with the ~~Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own~~ Paying Agent, ~~set aside~~in accordance with Section 4.01, ~~segregate and hold in trust)~~ an amount of money sufficient to ~~purchase~~ repurchase on the Fundamental Change ~~Purchase~~ Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change ~~Purchase~~ Repurchase Price. Subject to receipt of funds and/or Notes by the ~~Trustee (or other~~ Paying ~~Agent appointed by the Company)~~Agent, payment for ~~each Note~~ Notes surrendered for ~~purchase~~ repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made on promptly after the later of (x) the Fundamental Change ~~Purchase~~ Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change ~~Purchase~~ Repurchase Price in this Section ~~4.01~~15.01), and (y) the time of book-entry transfer or the delivery of such Note to the ~~Trustee (or other~~ Paying Agent ~~appointed by the Company)~~ by the Holder thereof in the manner required by this Section ~~4.01~~ 15.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the ~~Security~~ Register; provided, however, that payments to the ~~Depository~~ Depositary shall be made by wire transfer of immediately available funds to the account of the ~~Depository~~ Depositary or its nominee. The ~~Trustee (or other~~ Paying ~~Agent)~~ Agent shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change ~~Purchase~~ Repurchase Price. (e) If Subject to a Holder’s right to receive interest on the ~~Trustee (or other~~ related Interest Payment Date where the Fundamental Change Repurchase Date falls between a Regular Record Date and the Interest Payment Date to which it relates, if the Paying Agent ~~appointed by the Company)~~ holds money sufficient to ~~purchase~~ repurchase on the Fundamental Change ~~Purchase~~ Repurchase Date all of the Notes or portions thereof that are to be purchased as of the Business Day following the Fundamental Change ~~Purchase~~ Repurchase Date, then on and after the Fundamental Change ~~Purchase~~ Repurchase Date (i) such Notes shall cease to be ~~Outstanding~~ outstanding and ~~Interest, if any,~~ interest shall cease to accrue on such Notes, in either case, whether or not book-entry transfer of the Notes has been made ~~and whether~~ or ~~not~~ the Notes have been delivered to the ~~Trustee or~~ Paying Agent and (ii) all other rights of the Holders of such Notes shall ~~terminate,~~ terminate other than ~~(A)~~ the right to receive the Fundamental Change ~~Purchase~~ Repurchase Price ~~upon delivery or transfer of the Notes~~and previously accrued and unpaid interest, ~~and (B)~~ if the Fundamental Change Purchase Date falls after a Record Date and on or prior to the related Interest Payment Date the right of the Holder on such Record Date to receive the Interest payable on such Interest Payment Dateany. (f) In connection with any offer to purchase the Notes pursuant to this Article 4, the Company shall: (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act to the extent any such rules are applicable; (ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act; and (iii) otherwise comply with all applicable federal and state securities laws, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner specified herein. (g) Notwithstanding anything to the contrary herein, no No Notes may be ~~purchased by the Company~~ repurchased on any date at the option of Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the ~~relevant~~ applicable Fundamental Change ~~Purchase~~ Repurchase Date (except in the case of an acceleration resulting from a default by the ~~Company’s default~~ Company in the payment of the applicable Fundamental Change ~~Purchase~~ Repurchase Price with respect to such Notes). (g) In connection with any repurchase offer pursuant to a Fundamental Change Repurchase Notice, the Company shall, if required: (i) comply with the provisions of Rule 13e-4 under the Exchange Act, Rule 14e-1 under the Exchange Act and any other tender offer rules under the Exchange Act that may then be applicable; (ii) file a Schedule TO (or any successor schedule, form or report) to the extent required or any other required schedule under the Exchange Act; and (iii) otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes. SIGNATURES Dated as of ________, 2020 A.M. CASTLE & CO. By: Name: Title: TOTAL PLASTICS, INC. By: Name: Title: A. M. CASTLE & CO. (CANADA) INC. By: Name: Title: HY-ALLOY STEELS COMPANY By: Name: Title: KEYSTONE SERVICE, INC. By: Name: Title: KEYSTONE TUBE COMPANY, LLC By: Name: Title: CASTLE METALS DE MEXICO, S.A. DE C.V. By: Name: Title: CASTLE METALS DE MEXICALI, S.A. DE C.V. By: Name: Title: WILMINGTON SAVINGS FUND SOCIETY, FSB, not in its individual capacity but solely as Trustee By: Name: Title: WILMINGTON SAVINGS FUND SOCIETY, FSB, not in its individual capacity but solely as Collateral Agent By: Name: Title: [FORM OF NOTE] [Insert the Global Note Legend, if applicable] [Insert the Private Placement Legend, if applicable] No. [ ] $[ ] A. M. CASTLE & CO. A. M. Castle & Co., a Maryland corporation (the “Company”), promises to pay to [ ] or registered assigns, the principal sum of [ ] DOLLARS[, as revised by the Schedule of Increases and Decreases in Global Note attached hereto,]* Insert in Global Note. on [________], 2024. Interest Payment Dates: March 31, June 30, September 30 and December 31 Record Dates: March 15, June 15, September 15 and December 15 A. M. CASTLE & CO. By: Name: Title: This is one of the Notes referred to in the within-mentioned Indenture: Wilmington Savings Fund Society, FSB, As Trustee By: Authorized Signatory Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

Appears in 1 contract

Samples: Indenture (Total Plastics, Inc.)

Right to Require Repurchase upon a Fundamental Change. (a) If a Fundamental Change ~~occurs~~occurs at any time, then each Holder ~~of Notes~~ shall have the ~~option~~ right, at such Holder’s option, to require the Company to ~~purchase for cash~~ repurchase all ~~or any portion~~ of such Holder’s Notes or any portion thereof that is equal to $~~1,000,~~ 1,000 or an integral multiple of $~~1,000~~1,000 principal amount, for cash, on a date (the ~~day~~ “Fundamental Change Repurchase Date”) of the Company’s choosing that is not less than 20 or calendar days nor more than 35 ~~Business Days~~ calendar days after the ~~occurrence~~ date of ~~such Fundamental Change, subject to extension to comply with applicable law (such day,~~ the “Fundamental Change ~~Purchase Date”)~~Repurchase Right Notice, at a ~~purchase~~ repurchase price (the “Fundamental Change ~~Purchase~~ Repurchase Price”) equal to 100% of the principal amount ~~of the Notes to be purchased~~thereof, plus accrued and unpaid Interest to thereon to, but ~~excluding~~ not including, the Fundamental Change ~~Purchase Date (~~Repurchase Date, unless ~~the~~ such Fundamental Change ~~Purchase~~ Repurchase Date is falls after a Record Date for the payment of Interest and on or prior to the corresponding Interest Payment Date, in which case the Company shall pay the full amount of accrued and unpaid Interest payable on such Interest Payment Date to ~~which it relates~~the Holder of record at the close of business on the corresponding Record Date. Notwithstanding the foregoing, ~~in which case Interest accrued~~ no Holder shall have the right to require the ~~Interest Payment Date shall be paid~~ Company to ~~Holders~~ repurchase any of its Notes under clause (2) of the ~~Notes as~~ definition of ~~the preceding Record Date,~~ Fundamental Change (and the ~~purchase price the~~ Company is shall not be required to ~~pay to~~ deliver the ~~Holder surrendering the Note for purchase shall be equal to 100~~Fundamental Change Repurchase Notice incidental thereto) if at least 90% of the ~~principal amount~~ consideration paid for the Common Stock (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights and cash dividends) in a merger or consolidation or such other transaction otherwise constituting a Fundamental Change under clause (2) of the definition thereof consists of shares of common stock traded on any of the New York Stock Exchange, the NASDAQ Global Market, the NASDAQ Global Select Market or the American Stock Exchange (or any of their respective successors) (or will be so traded or quoted immediately following the completion of the merger or consolidation or such other transaction) and, as a result of the completion of the merger or consolidation or such other transaction the Notes become convertible into cash (in respect of the Principal Portion) and, if applicable, such shares of such ~~Note subject~~ common stock pursuant to ~~purchase and shall not include any accrued and unpaid Interest)~~Section 5.12. ~~Purchases~~ Repurchases of Notes under this Section 4.01 shall be made, at the option of the Holder thereof, upon: (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a Holder of a duly completed notice (the “Fundamental Change ~~Purchase~~ Repurchase Notice”) in the form set forth on the reverse of the Note ~~during~~ on or before the ~~period between the delivery of~~ Business Day prior to the Fundamental Change ~~notice and the close of business on the second Business Day immediately preceding the Fundamental Change Purchase~~ Repurchase Date (the “Fundamental Change Expiration Time”); and (ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent appointed by the Company) at any time after delivery of the Fundamental Change ~~Purchase~~ Repurchase Notice (together with all necessary endorsements, if the Notes are Physical Securities) at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the Company), such delivery being a condition to receipt by the Holder of the Fundamental Change ~~Purchase~~ Repurchase Price therefor. The Fundamental Change ~~Purchase~~ Repurchase Notice shall state: (A) if certificated, the certificate numbers of Notes to be delivered for ~~purchase~~repurchase; (B) the portion of the principal amount of Notes to be ~~purchased~~repurchased, which must be $1,000 or an integral multiple thereof; and (C) that the Notes are to be ~~purchased~~ repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture; provided, however, that if the Notes are Global Securities, the Fundamental Change ~~Purchase~~ Repurchase Notice must comply with applicable ~~Depository~~ Depositary procedures. ~~The~~ Any repurchase by the Company contemplated pursuant to the provisions of this Section 4.01 shall be ~~required~~ consummated by the delivery of the consideration to ~~purchase, pursuant to subsection~~ be received by the Holder on the later of (~~d), Notes that have been validly surrendered and not withdrawn on~~ i) the Fundamental Change ~~Purchase~~ Repurchase Date ~~pursuant to subsection~~ and (cii) the time of ~~this Section 4.01~~the book-entry transfer or the delivery of the Note. The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company of the receipt by it of any Fundamental Change ~~Purchase~~ Repurchase Notice or written notice of withdrawal thereof in accordance with the provisions of subsection (c) of this Section 4.01. Any Note that is to be ~~purchased~~ repurchased only in part shall be, if certificated, surrendered to the Trustee (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 his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the ~~unpurchased~~ unrepurchased portion of the principal of the Note so surrendered, or, if a Global Security, the Trustee, or the ~~custodian~~ Custodian at the direction of the Trustee, shall make a notation on such Global Security as to the reduction in the principal amount represented thereby for the ~~purchased~~ repurchased portion of the principal of the Note. (b) ~~The~~ After the occurrence of a Fundamental Change, but on or before the 10th calendar day following such occurrence, the Company shall ~~give~~ provide to all Holders of the Notes and the Trustee and ~~each Holder~~ Paying Agent a ~~written~~ notice of (the “Fundamental Change ~~within 5 Business Days after~~ Repurchase Right Notice”) of the occurrence of such Fundamental Change ~~(such notice~~and of the repurchase right, if any, at the ~~“Fundamental Change Purchase Right Notice”) and issue~~ option of the Holders arising as a ~~press release announcing the occurrence of~~ result thereof. Such mailing shall be by first class mail. Simultaneously with providing such Fundamental Change ~~(and make~~ Repurchase Right Notice, the ~~press release available~~ Company shall publish a notice containing the information included therein in a newspaper of general circulation in The City of New York or on ~~its website)~~the Company’s website or through such other public medium as the Company may use at such time. ~~Such notice shall be either by first class mail or, with respect to Global Notes, in accordance with the Depository’s notice procedures. The~~ Each Fundamental Change ~~Purchase~~ Repurchase Right Notice shall specify (if applicable): (i) the events causing ~~the~~ a Fundamental Change; (ii) the ~~effective~~ date of the Fundamental ~~Change and whether the Fundamental Change is a Make-Whole Adjustment Event~~Change; (iii) the last date on which a Holder may exercise the ~~purchase right pursuant to this Article 4~~repurchase right, if applicable; (iv) the Fundamental Change ~~Purchase~~ Repurchase Price, if applicable; (v) the Fundamental Change ~~Purchase~~ Repurchase Date, if applicable; (vi) the Conversion Rate and any adjustments to the Conversion Rate, and the procedures required for exercise of the Holder’s conversion right; (vii) the procedures required for exercise of the purchase option upon the Fundamental Change, and for withdrawal of a Fundamental Change Purchase Notice; and (viii) the name and address of the Paying Agent and the Conversion Agent, if applicable; (vii) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate; (viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of the Indenture; (ix) that the Holder must exercise the repurchase right on or prior to the Fundamental Change Expiration Time; (x) that the Holder shall have the right to withdraw any Notes surrendered for repurchase prior to the Fundamental Change Expiration Time; and (xi) the procedures that Holders must follow to require the Company to repurchase their Notes. No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 4.01. (c) A Fundamental Change ~~Purchase~~ Repurchase Notice may be withdrawn, in whole or in part, by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change ~~Purchase~~ Repurchase Right Notice at any time ~~until~~ prior to the Fundamental Change Expiration Time, specifying: (i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, (ii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, (iii) the principal amount, if any, of such Note that remains subject to the original Fundamental Change ~~Purchase~~ Repurchase Notice, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000; provided, however, that if the Notes are not in certificated form, the ~~withdrawal~~ notice must comply with appropriate procedures of the ~~Depository~~Depositary. (d) On or prior to 11:00 a.m., New York City time, on the Fundamental Change ~~Purchase~~ Repurchase Date, the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust) an amount of money sufficient to ~~purchase~~ repurchase on the Fundamental Change ~~Purchase~~ Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change ~~Purchase~~ Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for ~~each Note~~ Notes surrendered for ~~purchase~~ repurchase (and not withdrawn) prior to the Fundamental Change Expiration Time shall be made on the later of (x) the Fundamental Change ~~Purchase~~ Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions to the payment of the Fundamental Change ~~Purchase~~ Repurchase Price in this Section 4.01), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.01 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Security Register; provided, however, that payments to the ~~Depository~~ Depositary shall be made by wire transfer of immediately available funds to the account of the ~~Depository~~ Depositary or its nominee. The Trustee ~~(or other Paying Agent)~~ shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change ~~Purchase~~ Repurchase Price. (e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to ~~purchase~~ repurchase on the Fundamental Change ~~Purchase~~ Repurchase Date all the Notes or portions thereof that are to be ~~purchased~~ repurchased as of the Business Day following the Fundamental Change ~~Purchase~~ Repurchase Date, then on and after the Fundamental Change ~~Purchase~~ Repurchase Date (i) such Notes shall cease to be Outstanding and Interest, if any, shall cease to accrue on such Notes, whether or not book-entry transfer of the Notes has been made ~~and whether~~ or ~~not~~ the Notes have been delivered to the Trustee or Paying Agent and (ii) all other rights of the Holders of such Notes shall terminate, other than the right to receive (A) the ~~right to receive the~~ Fundamental Change ~~Purchase~~ Repurchase Price upon delivery or transfer of the Notes, and (B) the Interest payable on the Interest Payment Date corresponding to the Record Date immediately preceding the Fundamental Change Repurchase Date if the Fundamental Change ~~Purchase~~ Repurchase Date falls ~~after a~~ between such Record Date and ~~on or prior to the related~~ such Interest Payment Date ~~the right of the Holder on such Record Date to receive the Interest payable on such Interest Payment Date~~. (f) In connection with any ~~offer to purchase the~~ repurchase of Notes pursuant to this Article 4, the Company ~~shall~~hereby agrees to: (i) comply with the provisions of Rule 13e-1, Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act ~~to the extent any such rules are~~ that may then be applicable~~; (ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act~~; and (~~iii~~ii) otherwise comply with all applicable federal and state securities laws~~, in each case, so as to permit the rights and obligations under this Article 4 to be exercised in the time and in the manner specified herein~~. (g) ~~Notwithstanding anything to the contrary herein, no~~ No Notes may be ~~purchased by the Company~~ repurchased at the option of Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to ~~the relevant Fundamental Change Purchase Date~~ such date (except in the case of an acceleration resulting from the Company’s default in the payment of the Fundamental Change ~~Purchase~~ Repurchase Price with respect to such Notes).

Appears in 1 contract

Samples: First Supplemental Indenture (PHH Corp)

Common use of Right to Require Repurchase upon a Fundamental Change Clause in Contracts