Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10, the Company shall be required to commence an Asset Sale Offer, it shall follow the additional procedures specified below. (b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice to the Trustee and the Holders of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information). (c) The Asset Sale Offer Notice shall state, among other things: (1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture; (2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date; (3) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest; (4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”); (5) the aggregate principal amount of Notes to be purchased; (6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and (7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer. (d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08. (e) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Company or its agent at the address specified in the notice at least 3 Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than 1 Business Day prior to the Purchase Date, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered. (f) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holder.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In Subject to the terms of, and the relative priorities and related rights set forth in, the Third Lien Intercreditor Agreement, in the event that, pursuant to Section 4.10Section 4.18 (“Asset Sales”) hereof, the Company shall be required to commence an Asset Sale OfferOffer (the “Offer to Purchase”), it shall will follow the additional procedures specified belowbelow and in Sections 4.18(c), (d), (e) and (f) (“Asset Sales”):
(a) The Offer to Purchase shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets.
(b) Within The Offer to Purchase will remain open for a period of at least 20 Business Days following its commencement and not more than 30 days after the 365th day following the date of an Asset SaleBusiness Days, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice except to the Trustee and the Holders of the Notes extent that a longer period is required by applicable law (the “Asset Sale Offer NoticePeriod”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and such other pari passu Indebtedness tendered in response to the Offer to Purchase.
(d) If the Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such Record Date, and no additional interest will be payable to Holders who tender Notes pursuant to the Offer to Purchase.
(e) Upon the commencement of an Offer to Purchase, the Company will send a written notice to the Trustee and each of the Holders. The Asset Sale notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Offer Notice shall to Purchase. Subject to the last paragraph of this Section 3.10, the notice, which will govern the terms of the Offer to Purchase, will state, among other things:
(1) that the Company such Offer to Purchase is offering to purchase Notes being made pursuant to this Section 3.10 and Section 4.18 (“Asset Sales”) hereof and the provisions length of this Indenturetime such Offer to Purchase will remain open;
(2) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (Note not tendered or portions thereof) not properly tendered shall accepted for payment will continue to accrue interest;
(4) that, unless the purchase price and purchase dateCompany defaults in making such payment, which shall be, subject any Note accepted for payment pursuant to any contrary requirements of applicable law, no less than 30 days nor more than 60 days such Offer to Purchase will cease to accrue interest after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall pursuant to such Offer to Purchase may elect to have Notes purchased only in a minimum amount equal to the Current Principal Amount of Notes per Unit on such Purchase Date and integral multiples of such amount;
(6) that Holders electing to have Notes purchased pursuant to such Offer to Purchase will be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall will be entitled to withdraw their election if the Trustee or the Company receives Paying Agent receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders thereof exceeds the Asset Sale Offer Amount, the Company shall Trustee will select the Notes and the Company will select other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes no Note of $1.00 or less can be redeemed in part and that minimum denominations of $2,000, or integral multiples of $1,000 0.01 in excess thereof, shall be purchasedthereof are maintained). ; and
(9) that Holders whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Offer to Purchase, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.10 and Section 4.18 (“Asset Sales”). A The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Offer to Purchase on the Purchase Date.
(f) Other than as specifically provided in this Section 3.10, any repurchase pursuant to this Section 3.10 shall be made pursuant to the provisions of Sections 3.01 (“Notices to Trustee”) through 3.06 (“Notes Redeemed or Purchased in Part”) hereof as and to the extent applicable as if such repurchase were a redemption provided for therein. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to any Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 3.10 or Section 4.18 (“Asset Sales”) of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have been breached its obligations under this Section 3.10 or Section 4.18 (“Asset Sales”) of this Indenture by virtue of such conflict. Notwithstanding anything to the contrary in this Article 3 or Section 4.18, (i) tenders of Notes for purchase pursuant to the Asset Sale Offer may be made by Holders only in a minimum amount equal to the Current Principal Amount of Notes per Unit on such Purchase Date and, to the extent such Holder holds more than a single Stapled Security, integral multiples of such amount, and (ii) (x) if the aggregate principal amount of Notes surrendered by Holders thereof is less than the Offer Amount, all such Notes shall be accepted for purchase at by the time Company or the applicable Restricted Subsidiary, or (y) if the aggregate principal amount of Notes surrendered by Holders thereof exceeds the Offer Amount, the Trustee will select (or cause to be selected) the Notes to be purchased in integral multiples of the minimum amount specified above (and in no event, less than such integral multiple) on a pro rata basis (or as near to a pro rata basis as permitted by the Applicable Procedures), by lot to the extent practicable or by such other method as is consistent with the requirements of the Depositary, and such selected Notes shall be accepted for purchase by the Company or the Paying Agent mails applicable Restricted Subsidiary. Appropriate adjustments shall be made to any statement required by Section 3.03 or delivers payment therefor Section 3.10(e) hereof to reflect the surrendering Holderforegoing.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In Subject to the terms of, and the relative priorities and related rights set forth in, the Third Lien Intercreditor Agreement, in the event that, pursuant to Section 4.10Section 4.18 (“Asset Sales”) hereof, the Company shall be required to commence an Asset Sale OfferOffer (the “Offer to Purchase”), it shall will follow the additional procedures specified belowbelow and in Sections 4.18(c), (d), (e) and (f) (“Asset Sales”):
(a) The Offer to Purchase shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets.
(b) Within The Offer to Purchase will remain open for a period of at least 20 Business Days following its commencement and not more than 30 days after the 365th day following the date of an Asset SaleBusiness Days, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice except to the Trustee and the Holders of the Notes extent that a longer period is required by applicable law (the “Asset Sale Offer NoticePeriod”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and such other pari passu Indebtedness tendered in response to the Offer to Purchase.
(d) If the Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such Record Date, and no additional interest will be payable to Holders who tender Notes pursuant to the Offer to Purchase.
(e) Upon the commencement of an Offer to Purchase, the Company will send a written notice to the Trustee and each of the Holders. The Asset Sale notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Offer Notice shall to Purchase. Subject to the last paragraph of this Section 3.10, the notice, which will govern the terms of the Offer to Purchase, will state, among other things:
(1) that the Company such Offer to Purchase is offering to purchase Notes being made pursuant to this Section 3.10 and Section 4.18 (“Asset Sales”) hereof and the provisions length of this Indenturetime such Offer to Purchase will remain open;
(2) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (Note not tendered or portions thereof) not properly tendered shall accepted for payment will continue to accrue interest;
(4) that, unless the purchase price and purchase dateCompany defaults in making such payment, which shall be, subject any Note accepted for payment pursuant to any contrary requirements of applicable law, no less than 30 days nor more than 60 days such Offer to Purchase will cease to accrue interest after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall pursuant to such Offer to Purchase may elect to have Notes purchased only in a minimum amount equal to the Current Principal Amount of Notes per Unit on such Purchase Date and integral multiples of such amount;
(6) that Holders electing to have Notes purchased pursuant to such Offer to Purchase will be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall will be entitled to withdraw their election if the Trustee or the Company receives Paying Agent receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder ▇▇▇▇▇▇ is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders thereof exceeds the Asset Sale Offer Amount, the Company shall Trustee will select the Notes and the Company will select other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes no Note of $1.00 or less can be redeemed in part and that minimum denominations of $2,000, or integral multiples of $1,000 0.01 in excess thereof, shall be purchasedthereof are maintained). ; and
(9) that Holders whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Offer to Purchase, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.10 and Section 4.18 (“Asset Sales”). A The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Offer to Purchase on the Purchase Date.
(f) Other than as specifically provided in this Section 3.10, any repurchase pursuant to this Section 3.10 shall be made pursuant to the provisions of Sections 3.01 (“Notices to Trustee”) through 3.06 (“Notes Redeemed or Purchased in Part”) hereof as and to the extent applicable as if such repurchase were a redemption provided for therein. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to any Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 3.10 or Section 4.18 (“Asset Sales”) of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have been breached its obligations under this Section 3.10 or Section 4.18 (“Asset Sales”) of this Indenture by virtue of such conflict. Notwithstanding anything to the contrary in this Article 3 or Section 4.18, (i) tenders of Notes for purchase pursuant to the Asset Sale Offer may be made by Holders only in a minimum amount equal to the Current Principal Amount of Notes per Unit on such Purchase Date and, to the extent such Holder holds more than a single Stapled Security, integral multiples of such amount, and (ii) (x) if the aggregate principal amount of Notes surrendered by Holders thereof is less than the Offer Amount, all such Notes shall be accepted for purchase at by the time Company or the applicable Restricted Subsidiary, or (y) if the aggregate principal amount of Notes surrendered by Holders thereof exceeds the Offer Amount, the Trustee will select (or cause to be selected) the Notes to be purchased in integral multiples of the minimum amount specified above (and in no event, less than such integral multiple) on a pro rata basis (or as near to a pro rata basis as permitted by the Applicable Procedures), by lot to the extent practicable or by such other method as is consistent with the requirements of the Depositary, and such selected Notes shall be accepted for purchase by the Company or the Paying Agent mails applicable Restricted Subsidiary. Appropriate adjustments shall be made to any statement required by Section 3.03 or delivers payment therefor Section 3.10(e) hereof to reflect the surrendering Holderforegoing.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section Section 4.10, 4.28 and 4.29 hereof, the Company shall be required to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer," an "Event of Loss Offer" or an "Excess Cash Purchase Offer," respectively, and each of which is referred to herein as an "Excess Proceeds Offer"), it shall follow the additional applicable procedures specified below.
. The Excess Proceeds Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law or permitted by another applicable provision of this Indenture (b) Within 30 days the "Offer Period"). No later than five Business Days after the 365th day following termination of the date of an Asset SaleOffer Period (the "Purchase Date"), the Company shallshall purchase the principal amount of Notes required to be purchased pursuant to Section 4.10, 4.28 or 4.29 hereof (the "Offer Amount") or, if it less than the Offer Amount has been tendered, all Notes tendered in response to the Excess Proceeds Offer. Payment for any Notes so purchased shall be made in the same manner as Interest payments are made. If the Purchase Date is obligated on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid Interest shall be paid to make the Person in whose name a Note is registered at the close of business on such Record Date, and no additional Interest shall be payable to Holders who tender Notes pursuant to the Excess Proceeds Offer. Upon the commencement of an Asset Sale Excess Proceeds Offer, deliver the Company shall send, by first class mail, a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (the “Asset Sale Offer Notice”)Holders, accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect a copy to the Asset Sale Offer (which at a minimum Trustee. The notice shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) contain all other instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Excess Proceeds Offer.. The Excess Proceeds Offer shall be made to all Holders. The notice, which shall govern the terms of the Excess Proceeds Offer, shall state:
(a) that the Excess Proceeds Offer is being made pursuant to this Section 3.10 and either Section 4.10, 4.28 or 4.29 hereof and the length of time the Excess Proceeds Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue to accrete or accrue Interest;
(d) Not later than that, unless the date upon which the Asset Sale Offer Notice is delivered Company defaults in making such payment, any Note accepted for payment pursuant to the Trustee as provided in clause (c) of this Section 3.08, the Company Excess Proceeds Offer shall deliver cease to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee accrete or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on accrue Interest after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note purchased pursuant to an Excess Proceeds Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(f) that Holders electing to have a Note purchased pursuant to any Excess Proceeds Offer shall be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Company, a depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(g) that Holders shall be entitled to withdraw their election if the Trustee Company, the depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder ▇▇▇▇▇▇ is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company Trustee shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall be purchased). ; and
(i) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Excess Proceeds Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ ' Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.10. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Excess Proceeds Offer on the Purchase Date. Other than as specifically provided in this Section 3.10, any purchase pursuant to this Section 3.10 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (Riviera Black Hawk Inc)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.08 hereof, the Company shall be Issuers are required to commence an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it they shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice to the Trustee and the Holders of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(ca) The Asset Sale Offer Notice shall state, among other things:
(1) that be made to all Holders and if the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note Issuers elect (or any portion thereof) accepted for payment (and duly paid on are required by the Purchase Date) pursuant to terms of other Pari Passu Indebtedness), all holders of other indebtedness that is pari passu with the Notes. The Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (or portions thereof) remain open for a period of at least 20 Business Days following its commencement and not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less more than 30 days nor more Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than 60 days five Business Days after the date termination of the Prepayment Offer Notice is mailed Period (the “Purchase Date”);, the Issuers shall apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other Pari Passu Indebtedness, if any, (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made pursuant to Section 4.01 hereof.
(5b) If the aggregate principal amount Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Interest, if any, shall be paid to the Person in whose name a Note is registered at the close of Notes business on such record date, and no additional interest shall be payable to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to who tender Notes pursuant to the Asset Sale Offer.
(dc) Not later than Upon the date upon which commencement of an Asset Sale Offer, the Issuers shall send, by first class mail, a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer Notice is delivered to Offer. The notice, which shall govern the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount terms of the Asset Sale Offer Offer, shall state:
(1) that the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made pursuant to this Section 3.09 and (3) Section 4.08 hereof and the compliance length of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to time the Asset Sale Offer Amount to be held for payment in accordance with shall remain open;
(2) the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Company or its agent at the address specified in the notice at least 3 Business Days prior to purchase price and the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than 1 Business Day prior to the Purchase Date, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.;
(f3) At the time the Company delivers Notes to the Trustee which are to be that any Note not tendered or accepted for purchase, the Company payment shall also deliver an Officers’ Certificate stating that such Notes are continue to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holder.accrue interest;
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.14 hereof, the Company is required to commence an offer to all Holders to purchase Notes (“Asset Sale Offer”), it shall follow the procedures specified below. The Asset Sale Offer shall be made to all Holders of Notes and all holders of other Pari Passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company shall apply a portion of the Excess Proceeds as calculated pursuant to Section 4.14 hereof (the “Offer Amount”) to the purchase of Notes and such other Pari Passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all of such Notes and other Pari Passu Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be required to commence made in the same manner as interest payments are made. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallshall send, if it is obligated to make an Asset Sale Offerby first-class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company applicable Holders. The notice will contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) will govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall Offer, will state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.14 and Section 4.14 hereof and the provisions length of this Indenturetime the Asset Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that with respect to any Notes, any Note (not tendered or any portion thereof) accepted for payment will continue to accrue interest;
(and duly paid on 4) that, unless the Purchase Date) Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on after the Purchase Date;
(35) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase datethat, which shall be, subject with respect to any contrary requirements of applicable lawNotes, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have such Notes purchased in a principal amount of $2,000 (or in integral multiples of $1,000 in excess thereof) only;
(6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Company, the Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall be entitled to withdraw their election if the Trustee Company or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of any Notes and other Pari Passu Indebtedness surrendered by Holders exceeds in connection with the Asset Sale Offer exceeds the Offer Amount, the Company shall select the Notes and other Pari Passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other Pari Passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only such Notes in denominations of $2,000, 2,000 (or integral multiples of $1,000 in excess thereof), shall will be purchased). ; and
(9) that Holders of any Notes whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of such Notes surrendered (or transferred by book-entry transfer). On or before the Notes surrendered.
(f) At the time Purchase Date, the Company delivers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of the applicable Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all such Notes tendered, and shall deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.14. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company, shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Purchase Date. Other than as specifically provided in this Section 3.14, any purchase pursuant to this Section 3.14 shall be made pursuant to the provisions of Sections 3.1 through 3.6 hereof.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event thatIf, pursuant to Section Section 4.10, the Company shall be is required to commence an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it shall will follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice to the Trustee and the Holders of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) . The Asset Sale Offer Notice shall state, among be made to all Holders and all Holders of other things:
(1) Indebtedness that is pari passu with the Company is offering Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase Notes pursuant to or redeem with the provisions proceeds of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the sales of assets. The Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements will remain open for a period of applicable law, no less than at least 30 days nor following its commencement and not more than 60 days days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the date termination of the Prepayment Offer Notice is mailed Period (the “Purchase Date”);
, the Company will apply all Excess Proceeds (5the “Offer Amount”) to the aggregate principal amount purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be purchased;
(6) made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest if any, will be paid to the Person in whose name a description Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to the Trustee and each of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) Holders. The notice will contain all other instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than . The notice, which will govern the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount terms of the Asset Sale Offer Offer, will state:
(a) that the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 and the length of time the Asset Sale Offer will remain open;
(3b) the compliance of such allocation with the provisions of Section 4.10(a). On such dateOffer Amount, the Company shall also irrevocably deposit with purchase price and the Trustee Purchase Date;
(c) that any Note not tendered or with the Paying Agent accepted for payment will continue to accrue interest;
(ord) that, if unless the Company is the Paying Agentdefaults in making such payment, shall segregate and hold in trust) in cash an amount equal any Note accepted for payment pursuant to the Asset Sale Offer Amount will cease to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on accrue interest after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note purchased shall pursuant to an Asset Sale Offer may elect to have Notes purchased in minimum denominations of US$200,000 and integral multiples of US$1,000 thereof only;
(f) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(g) that Holders shall will be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, an e-mail, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder ▇▇▇▇▇▇ is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(h) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders thereof exceeds the Asset Sale Offer Amount, the Company shall will select the Notes and other pari passu Indebtedness to be purchased in accordance with Section 3.02 based on a pro rata basis the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in minimum denominations of $2,000US$200,000, or and integral multiples of $US$1,000 in excess thereof, shall will be purchased). ; and
(i) that Holders whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer), provided, that the time unpurchased portion has a minimum denomination of US$200,000. On or before the Purchase Date, the Company delivers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, but subject to Section 3.02, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Officer’s Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered, provided, that the unpurchased portion has a minimum denomination of US$200,000. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.9 shall be made pursuant to the provisions of Sections 3.01 through 3.06.
Appears in 1 contract
Sources: Indenture (Azure Power Global LTD)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.12 hereof, the Company shall be required to commence an offer to all Holders to purchase Notes and, at the Company’s option, holders of other pari passu Indebtedness (an “Asset Sale Offer”), it shall follow the additional procedures specified below.
(b) Within 30 The Asset Sale Offer for the Notes shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than five Business Days after the termination of the Offer Period (the “Purchase Date”), the Company shall purchase the principal amount of Notes required to be purchased pursuant to Section 4.12 hereof (the “Offer Amount”) or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is on or after a Regular Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest and Special Interest, if any, shall be paid to the Person in whose name a Note is registered at the close of business on such Regular Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of the Asset Sale Offer, the Company shall send, by first class mail or deliver by electronic transmission, a notice to each of the Holders, which shall not be later than 10 days after the 365th day following the date of an Asset Sale, the Company shall, if it is becomes obligated to make an Asset Sale Offer, deliver Offer for the Notes with a written Asset Sale Offer notice copy to the Trustee Trustee. The notice shall contain all instructions and the Holders of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) Offer. The Asset Sale Offer Notice shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.08 and Section 4.12 hereof and the provisions length of this Indenturetime the Asset Sale Offer shall remain open;
(2) the Offer Amount (including information as to any other pari passu Indebtedness included in the Asset Sale Offer), the purchase price and the Purchase Date;
(3) that any Note (not tendered or any portion thereof) accepted for payment shall continue to accrete or accrue interest;
(and duly paid on 4) that, unless the Purchase Date) Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on after the Purchase Date;
(35) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have all or a part of such Note purchased, provided that any portion of a Note purchased must be in the amount of $2,000 or an integral multiple of $1,000 in excess thereof;
(6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Company, the Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes surrendered tendered by Holders into an Asset Sale Offer exceeds the Asset Sale Offer Amount, the Company Trustee shall select the Notes to be purchased (1) if the Notes are listed, in compliance with the requirements of the principal national securities exchange on which the Notes are then listed or (2) if the Notes are not so listed, on a pro rata basis basis, by lot or by such method as the Trustee shall deem fair and appropriate (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased). ; and
(9) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). Not later than the time the Company delivers Notes date upon which written notice of an Asset Sale Offer is delivered to the Trustee which are to be accepted for purchaseas provided above, the Company shall also deliver to the Trustee an Officers’ Officer’s Certificate as to the allocation of the Net Proceeds from the Asset Sale pursuant to which such Asset Sale Offer is being made and the compliance of such allocation with the provisions of Section 4.12. On such date, the Company shall deposit with the Trustee or with the Paying Agent an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. On or before the Purchase Date, the Company shall, to the extent lawful, accept for payment, in accordance with clause (8) above, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee an Officer’s Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.08. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 3.08, any purchase pursuant to this Section 3.08 shall be made pursuant to the provisions of Section 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (Pilgrims Pride Corp)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be required to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it shall follow the additional procedures specified below.
. The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (b) Within 30 days the "Offer Period"). No later than five Business Days after the 365th day following termination of the date of an Asset SaleOffer Period (the "Purchase Date"), the Company shallshall purchase the accreted value or principal amount, as the case may be, of Notes and other Senior Indebtedness of the Company required to be purchased pursuant to Section 4.10 hereof (on a pro-rata basis if Notes and other senior Indebtedness of Company tendered (on a pro rata basis if Notes and other senior Indebtedness of the Company tendered are in excess of the excess of the Excess Proceeds) (the "Offer Amount") or, if it less than the Offer Amount has been tendered, all Notes and other senior Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is obligated on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Special Interest, if any, shall be paid to make the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, deliver the Company shall send, by first class mail, a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (the “Asset Sale Offer Notice”)Holders, accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect a copy to the Asset Sale Offer (which at a minimum Trustee. The notice shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) contain all other instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the . The Asset Sale Offer Notice is delivered shall be made to all Holders. The notice, which shall govern the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount terms of the Asset Sale Offer Offer, shall state:
(a) that the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer shall remain open;
(3b) the compliance of such allocation with the provisions of Section 4.10(a). On such dateOffer Amount, the Company purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall also irrevocably deposit with the Trustee continue to accrete or with the Paying Agent accrue interest;
(ord) that, if unless the Company is the Paying Agentdefaults in making such payment, shall segregate and hold in trust) in cash an amount equal any Note accepted for payment pursuant to the Asset Sale Offer Amount shall cease to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes accrete or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on accrue interest after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(f) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Company, a depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(g) that Holders shall be entitled to withdraw their election if the Trustee Company, the depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount at maturity of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(h) that, if the aggregate principal amount at maturity (or accreted value, as applicable) of Notes and other senior Indebtedness of the Company surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall be purchased). ; and
(i) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount at maturity to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes and other senior Indebtedness tendered, and shall deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ ' Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company shall authenticate and mail or deliver such new Note to such Holder, in a principal amount at maturity equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 or 4.16 hereof, the Company shall be ▇▇▇▇ Las Vegas is required to commence an Asset Sale Offer or an Event of Loss Offer (each Asset Sale Offer or Event of Loss Offer is referred to in this section as an "Excess Proceeds Offer"), it shall follow the additional procedures specified below.. The Excess Proceeds Offer shall be made to all Holders. The Excess Proceeds Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than three Business Days after the termination of the Offer Period (the "Purchase Date"), ▇▇▇▇ Las Vegas shall apply all Excess Proceeds (the "Offer Amount") to the purchase of Notes (if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal securities exchange on which the Notes are listed, or, if the Notes are not listed on any national securities exchange, on a pro rata basis, by lot or by any other method the Trustee deems fair and appropriate, if applicable) or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Excess Proceeds Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Excess Proceeds Offer. ▇▇▇▇ Las Vegas shall provide the Trustee with notice of the Excess Proceeds Offer at least 10 days (or such lesser time as the Trustee shall permit) prior to its commencement. Upon the commencement of an Excess Proceeds Offer, ▇▇▇▇ Las Vegas shall send, by first class mail, a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Excess Proceeds Offer. The notice, which shall govern the terms of the Excess Proceeds Offer, shall state:
(a) that the Excess Proceeds Offer is being made pursuant to this Section 3.10 and Section 4.10 or Section 4.16 hereof, as appropriate, and the length of time the Excess Proceeds Offer shall remain open;
(b) Within 30 days after the 365th day following the date of an Asset SaleOffer Amount, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice to the Trustee purchase price and the Holders of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3c) that any Notes (Note not tendered or portions thereof) not properly tendered accepted for payment shall continue to accrue interest;
(4d) the purchase price and purchase datethat, which shall beunless ▇▇▇▇ Las Vegas defaults in making such payment, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes Note accepted for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes payment pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Excess Proceeds Offer Notice is delivered shall cease to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on accrue interest after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note purchased pursuant to an Excess Proceeds Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(f) that Holders electing to have a Note purchased pursuant to any Excess Proceeds Offer shall be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to ▇▇▇▇ Las Vegas, the Company Depositary, if appointed by ▇▇▇▇ Las Vegas, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(g) that Holders shall be entitled to withdraw their election if ▇▇▇▇ Las Vegas, the Trustee Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at ; provided that, with respect to Notes that have been tendered using the expiration procedure for book-entry transfer, any such notice of withdrawal shall specify the name number of the Asset Sale Offer Period account at The Depository Trust Company to be credited with the withdrawn Notes and shall otherwise comply with the procedures of the book-entry transfer facility;
(h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company ▇▇▇▇ Las Vegas shall select the Notes to be purchased purchased, if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal securities exchange on which the Notes are listed, or if the Notes are not listed on any national securities exchange, on a pro rata basis basis, by lot or by any other method the Trustee deems fair and appropriate (with such adjustments as may be deemed appropriate by the Company ▇▇▇▇ Las Vegas so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall be purchased). ; and
(i) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, ▇▇▇▇ Las Vegas shall, to the Company delivers extent lawful, accept for payment, if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal securities exchange on which the Notes are listed, or if the Notes are not listed on any national securities exchange, on a pro rata basis, by lot or by any other method the Trustee deems fair and appropriate, to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Excess Proceeds Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ ' Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and ▇▇▇▇ Las Vegas in accordance with the terms of this Section 4.103.10. A Note shall be deemed to have been accepted for purchase at ▇▇▇▇ Las Vegas, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by ▇▇▇▇ Las Vegas for purchase, and ▇▇▇▇ Las Vegas shall promptly issue a new Note, and the Trustee, upon written request from ▇▇▇▇ Las Vegas shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by ▇▇▇▇ Las Vegas to the Holder thereof. ▇▇▇▇ Las Vegas shall publicly announce the results of the Excess Proceeds Offer on the Purchase Date. Other than as specifically provided in this Section 3.10, any purchase pursuant to this Section 3.10 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (Wynn Las Vegas LLC)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be is required to commence an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it will follow the procedures specified below. The Asset Sale Offer shall be made to all Holders and all holders of Pari Passu Obligations containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other Pari Passu Obligations (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Special Interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallwill send, if it is obligated to make an Asset Sale Offerby first class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice will contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) will govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall Offer, will state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 hereof and the provisions length of this Indenturetime the Asset Sale Offer will remain open;
(2) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (Note not tendered or portions thereof) not properly tendered shall accepted for payment will continue to accrue interest;
(4) that, unless the purchase price and purchase dateCompany defaults in making such payment, which shall be, subject any Note accepted for payment pursuant to any contrary requirements of applicable law, no less than 30 days nor more than 60 days the Asset Sale Offer will cease to accrue interest after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall will be entitled to withdraw their election if the Trustee Company or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and other Pari Passu Obligations surrendered by Holders holders thereof exceeds the Asset Sale Offer Amount, the Company shall will select the Notes and other Pari Passu Obligations to be purchased on a pro rata basis based on the principal amount of Notes and such other Pari Passu Obligations surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall will be purchased). ; and
(9) that Holders whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Officer’s Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.09. A The Paying Agent will promptly (but in any case not later than three Business Days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Authentication Order, will authenticate and mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be deemed to have been accepted for purchase at promptly mailed or delivered by the time the Trustee or the Paying Agent mails or delivers payment therefor Company to the surrendering HolderHolder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (Global Crossing LTD)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10, that the Company Issuers shall be required to commence an offer to all Holders to purchase Notes (a "Purchase Offer") pursuant to Section 4.10 hereof, an "Asset Sale Offer," or pursuant to Section 4.15 hereof, it a "Change of Control Offer," the Issuers shall follow the additional procedures specified below.
. The Purchase Offer shall remain open for a period of 20 Business Days following its commencement (b) Within 30 days the "Offer Period"). No later than five Business Days after the 365th day following termination of the date Offer Period (the "Purchase Date"), the Issuers shall purchase the principal amount of Notes required to be purchased pursuant to Section 4.10 hereof, in the case of an Asset SaleSale Offer or 4.15 hereof, in the case of a Change of Control Offer (the "Offer Amount") or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Purchase Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of usiness on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Purchase Offer. Upon the commencement of a Purchase Offer, the Company shallIssuers shall send, if it is obligated to make an Asset Sale Offerby first class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice shall contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase tender Notes pursuant to the provisions Purchase Offer. The Purchase Offer shall be made to all Holders. The notice, which shall govern the terms of the Purchase Offer, shall state:
(a) that the Purchase Offer is being made pursuant to this IndentureSection 3.9 and Section 4.10 or 4.15 hereof, as applicable, and the length of time the Purchase Offer shall remain open;
(2b) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3c) that any Notes (Note not tendered or portions thereof) not properly tendered accepted for payment shall continue to accrue interest;
(4d) that, unless the purchase price and purchase dateIssuers default in making such payment, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes Note accepted for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes payment pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Purchase Offer Notice is delivered shall cease to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made accrue interest and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (orLiquidated Damages, if the Company is the Paying Agentany, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note purchased pursuant to a Purchase Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any Purchase Offer shall be required to surrender the Note, with an appropriate the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note duly completed, or transfer by book-entry transfer, to the Company Issuers, a Depository, if appointed by the Issuers, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to the Purchase Date. expiration of the Offer Period;
(g) that Holders shall be entitled to withdraw their election if the Trustee Issuers, the Depository or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by purchase, the Holder certificate number (in the case of a Definitive Note) and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company Issuers shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company Issuers so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall be purchased). ; and
(i) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrenderedsurrendered (or transferred by book-entry transfer).
(f) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holder.
Appears in 1 contract
Sources: Indenture (Foamex Capital Corp)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 8.5(c), the Company shall be required to commence on an Asset Sale Offer Trigger Date an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it shall follow the procedures specified in this Section 7.9. Each Asset Sale Offer shall remain open for not less than thirty (30) nor more than sixty (60) days immediately following its commencement, except to the extent that a longer period is required by Applicable Law (the “Offer Period”). On the Business Day immediately after the termination of the Offer Period (the “Purchase Date”), the Company shall purchase the principal amount of Notes required to be purchased pursuant to Section 8.5 plus accrued and unpaid interest thereon, if any, to the Purchase Date (the “Offer Amount”) or, if less than the Offer Amount has been tendered, the Company shall purchase all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. The Company shall comply with the requirements of Rule 14e-l under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of an Asset Sale Offer and the Company shall not be in violation of this Agreement by reason of such compliance with such rule or other applicable law.
(b) Upon the commencement of an Asset Sale Offer, it the Company shall follow send, by first class mail, a notice to each of the additional procedures specified below.Holders stating:
(bi) Within 30 days after the 365th day following the date of an Asset Sale, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice to the Trustee and the Holders of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to that the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared being made pursuant to this Section 4.03), (B) a description 7.9 and Section 8.5 hereof and the length of material developments in time the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indentureremain open;
(2ii) the Offer Amount, the purchase price and the Purchase Date;
(iii) that any Note (not tendered or any portion thereof) accepted for payment shall continue to accrue interest;
(and duly paid on iv) that, unless the Purchase Date) Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on after the Purchase Date;
(3v) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to an Asset Sale Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(vi) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly completed, entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed to the Company or its agent at the address specified in the notice at least 3 three Business Days prior to before the Purchase Date. ;
(vii) that Holders shall be entitled to withdraw their election if the Trustee or the Company receives receives, not later than 1 the second Business Day prior to preceding the Purchase DateDate of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his its election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(viii) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes (or portions thereof) in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall be purchased). ; and
(ix) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(fc) At On or before the time the Company delivers Notes to the Trustee which are to be accepted for purchasePurchase Date, the Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall also deliver to the Holders an Officers’ Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.107.9. A The Company (to the extent lawful) shall promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note and deliver it to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be deemed to have been accepted for purchase at promptly mailed or delivered by the time the Trustee or the Paying Agent mails or delivers payment therefor Company to the surrendering HolderHolder thereof.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be is required to commence an Asset Sale Offer, it shall follow the additional procedures specified below.
. The Asset Sale Offer shall be made to all Holders and if the Company elects (b) Within or is required by the terms of other pari passu Indebtedness), all holders of other Indebtedness that is Pari Passu with the Notes. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 days Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than five Business Days after the 365th day following termination of the date of an Asset SaleOffer Period (the “Purchase Date”), the Company shallshall apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness, if it any, (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made pursuant to Section 4.01 hereof. If the Purchase Date is obligated on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Special Interest, if any, shall be paid to make the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, deliver the Company shall send, by first class mail, a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice shall contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice Offer, shall state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 hereof and the provisions length of this Indenturetime the Asset Sale Offer shall remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note (not tendered or any portion thereof) accepted for payment shall continue to accrue interest;
(and duly paid on 4) that, unless the Purchase Date) Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on after the Purchase Date;
(35) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $2,000 or integral multiples of $1,000 only;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to on the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders holders thereof exceeds the Asset Sale Offer Amount, the Company shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof1,000, shall be purchased). ; and
(9) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Officer’s Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company, shall promptly issue a new Note, and the Trustee, upon written request from the Company shall authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (IASIS Healthcare LLC)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 or 4.16, the Company shall be Revel is required to commence an Asset Sale Offer or an Event of Loss Offer (each Asset Sale Offer or Event of Loss Offer is referred to in this Section 3.10 as an “Excess Proceeds Offer”), it shall follow the additional procedures specified below.. The Excess Proceeds Offer shall be made to all Holders. The Excess Proceeds Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). Promptly after the termination of the Offer Period (the “Purchase Date”), Revel shall apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Excess Proceeds Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Excess Proceeds Offer. Revel shall provide the Trustee with notice of the Excess Proceeds Offer at least 10 days (or such lesser time as the Trustee shall permit) prior to its commencement. Upon the commencement of an Excess Proceeds Offer, Revel shall send, by first class mail, a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Excess Proceeds Offer. The notice, which shall govern the terms of the Excess Proceeds Offer, shall state:
(a) that the Excess Proceeds Offer is being made pursuant to this Section 3.10 and either Section 4.10 and 4.16, as applicable, and the length of time the Excess Proceeds Offer shall remain open;
(b) Within 30 days after the 365th day following the date of an Asset SaleOffer Amount, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice to the Trustee purchase price and the Holders of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3c) that any Notes (not tendered or portions thereof) not properly tendered accepted for payment shall continue to accrue interest;
(4d) the purchase price and purchase datethat, which shall beunless Revel defaults in making such payment, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes Note accepted for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes payment pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Excess Proceeds Offer Notice is delivered shall cease to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on accrue interest after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note purchased pursuant to an Excess Proceeds Offer may elect to have Notes purchased in denominations of $2,000 or integral multiples of $1,000 in excess of $2,000 only, except that the foregoing shall not apply to PIK Notes;
(f) that Holders electing to have a Note purchased pursuant to any Excess Proceeds Offer shall be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to Revel, the Company Depositary, if appointed by Revel, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(g) that Holders shall be entitled to withdraw their election if Revel, the Trustee Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at ; provided that, with respect to Notes that have been tendered using the expiration procedure for book-entry transfer, any such notice of withdrawal shall specify the name number of the Asset Sale Offer Period account at The Depository Trust Company to be credited with the withdrawn Notes and shall otherwise comply with the procedures of the book-entry transfer facility;
(h) that, if the aggregate principal amount (or accreted value, as applicable) of Notes surrendered by Holders exceeds the Asset Sale Offer Amountprincipal amount to be purchased set forth in such notice, the Company Revel shall select the Notes to be purchased purchased, on a pro rata basis basis, based on the principal amount (or accreted value, as applicable) of Notes surrendered (with such adjustments as may be deemed appropriate by the Company Revel so that only Notes in denominations of $2,000, 2,000 or integral multiples of $1,000 in excess thereofof $2,000, shall be purchased). ; and
(i) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (for transferred by book-entry transfer). On or before the Purchase Date for the Excess Proceeds Offer, Revel shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the principal amount (or accreted value, as applicable) At of Notes set forth in the time the Company delivers foregoing notice, or if less than such amount has been tendered, all Notes tendered, and shall deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Certificate stating that such Notes are to be were accepted for payment by the Company pursuant to and Revel in accordance with the terms of this Section 4.103.10. A Note shall be deemed to have been accepted for purchase at Revel, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by Revel for purchase, and Revel shall promptly issue a new Note, and the Trustee, upon written request from Revel shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by Revel to the Holder thereof. Other than as specifically provided in this Section 3.10, any purchase pursuant to this Section 3.10 shall be made pursuant to the provisions of Sections 3.01 through 3.06.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company is required to commence an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it shall follow the procedures specified below. The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company shall apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be required made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, shall be paid to commence the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shall, if it is obligated to make an Asset Sale Offer, shall deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice shall contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) will govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice Offer, shall state, among other things:
: (1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 hereof and the provisions length of this Indenture;
time the Asset Sale Offer will remain open; (2) the Offer Amount, the purchase price and the Purchase Date; (3) that any Note (not tendered or any portion thereof) accepted for payment shall continue to accrue interest; (and duly paid on 4) that, unless the Purchase Date) Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
; (5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in whole multiples of $1,000 only; (6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ; (7) that Holders shall be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a facsimile transmission or letter or transfer by book-entry setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ; (8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders holders thereof exceeds the Asset Sale Offer Amount, the Company shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(f) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holder.by
Appears in 1 contract
Sources: Indenture (Patrick Industries Inc)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.12 or 4.21 hereof, the Company Issuers shall be required to commence an Asset Sale OfferOffer or Event of Loss Offer (each, an “Offer to Purchase”), it shall follow the additional procedures specified below.
(b) Within 30 days after The Issuers shall commence the 365th day following the date of an Asset SaleOffer to Purchase by sending, the Company shallby first-class mail, if it is obligated to make an Asset Sale Offer, deliver with a written Asset Sale Offer notice copy to the Trustee Trustee, to each Holder at such Holder’s address appearing in the Security Register, a notice the terms of which shall govern the Offer to Purchase stating:
(i) that the Offer to Purchase is being made pursuant to this Section 3.10 and Section 4.12 or 4.21, as the Holders case may be;
(ii) the principal amount of Notes required to be purchased pursuant to Section 4.12 or 4.21, as the Notes case may be (the “Asset Sale Offer NoticeAmount”), accompanied by such information regarding the Company and its Subsidiaries purchase price set forth in Section 4.12 or 4.21, as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Companyapplicable, the most recent subsequently filed Quarterly Report on Form 10-Q of Offer Period and the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports Purchase Date (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03each as defined below), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2iii) except as provided in clause (ix), that all Notes timely tendered and not withdrawn shall be accepted for payment;
(iv) that any Note (not tendered or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4v) that, unless the purchase price and purchase dateIssuers default in making such payment, which any Note accepted for payment pursuant to the Offer to Purchase shall be, subject cease to any contrary requirements of applicable law, no less than 30 days nor more than 60 days accrue interest after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5vi) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to an Offer to Purchase may elect to have Notes purchased in integral multiples of $1,000 only, unless such Holder is electing to have all of its Notes purchased and such Notes are in an amount less than an integral multiple of $1,000;
(vii) that Holders electing to have a Note purchased pursuant to any Offer to Purchase shall be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Issuers, the Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 before the close of business on the third Business Days prior to Day before the Purchase Date. ;
(viii) that Holders shall be entitled to withdraw their election if the Trustee Issuers, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was (or portions thereof) the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(ix) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company Issuers shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company Issuers so that only Notes in denominations of $2,000, 1,000 or integral multiples of $1,000 in excess thereof, thereof shall be purchased). ;
(x) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrenderedsurrendered (or transferred by book-entry transfer); and
(xi) any other procedures the Holders must follow in order to tender their Notes (or portions thereof) for payment and the procedures that Holders must follow in order to withdraw an election to tender Notes (or portions thereof) for payment.
(fc) At The Offer to Purchase shall remain open for a period of at least 20 Business Days but no more than 30 Business Days following its commencement, except to the time extent that a longer period is required by applicable law (the Company delivers “Offer Period”). No later than five (5) Business Days after the termination of the Offer Period (the “Purchase Date”), the Issuers shall purchase the Offer Amount or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Offer to Purchase. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. The Issuers shall publicly announce the results of the Offer to Purchase on or as soon as practicable following the Purchase Date.
(d) On or prior to the Purchase Date, the Issuers shall, to the extent lawful:
(i) accept for payment (on a pro rata basis to the extent necessary), the Offer Amount of Notes or portions of Notes properly tendered and not withdrawn pursuant to the Offer to Purchase, or if less than the Offer Amount has been tendered, all Notes tendered;
(ii) deposit with the Paying Agent funds in an amount equal to the purchase price as set forth in Section 4.12 or 4.21, as applicable, in respect of all Notes or portions of Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee which are to be the Notes so accepted for purchase, the Company shall also deliver together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company and that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and Issuers in accordance with the terms of this Section 4.103.10.
(e) The Depositary or the Paying Agent (or an Issuer, if acting as the Paying Agent), as the case may be, shall promptly deliver to each tendering Holder the purchase price as set forth in Section 4.12 or 4.21, as applicable. A In the event that any portion of the Notes surrendered is not purchased by the Company, the Issuers shall promptly execute and issue a new Note in a principal amount equal to such unpurchased portion of the Note surrendered, and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate and deliver (or cause to be transferred by book-entry) such new Note to such Holder.
(f) If the Purchase Date is on or after a Regular Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such Regular Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Offer to Purchase.
(g) The Issuers shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with Sections 4.12 or 4.21, as applicable, this Section 3.10 or other provisions of this Indenture, the Issuers shall comply with applicable securities laws and regulations and shall not be deemed to have been accepted for breached its obligations under Sections 4.12 or 4.21, as applicable, this Section 3.10 or such other provisions of this Indenture by virtue of such conflict.
(h) Other than as specifically provided in this Section 3.10, any purchase at pursuant to this Section 3.10 shall be made in accordance with the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holderprovisions of Section 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (Trump Entertainment Resorts Holdings Lp)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 or 4.16 hereof, the Company shall be ▇▇▇▇ Las Vegas is required to commence an Asset Sale Offer or an Event of Loss Offer (each Asset Sale Offer or Event of Loss Offer is referred to in this Section 3.10 as an "Excess Proceeds Offer"), it shall follow the additional procedures specified below.. The Excess Proceeds Offer shall be made to all Holders. The Excess Proceeds Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than three Business Days after the termination of the Offer Period (the "Purchase Date"), ▇▇▇▇ Las Vegas shall apply all Excess Proceeds (the "Offer Amount") to the purchase of Notes (if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal securities exchange on which the Notes are listed, or, if the Notes are not listed on any national securities exchange, on a pro rata basis, by lot or by any other method the Trustee deems fair and appropriate, if applicable) or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Excess Proceeds Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Excess Proceeds Offer. ▇▇▇▇ Las Vegas shall provide the Trustee with notice of the Excess Proceeds Offer at least 10 days (or such lesser time as the Trustee shall permit) prior to its commencement. Upon the commencement of an Excess Proceeds Offer, ▇▇▇▇ Las Vegas shall send, by first class mail, a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Excess Proceeds Offer. The notice, which shall govern the terms of the Excess Proceeds Offer, shall state:
(a) that the Excess Proceeds Offer is being made pursuant to this Section 3.10 and Section 4.10 or Section 4.16 hereof, as appropriate, and the length of time the Excess Proceeds Offer shall remain open;
(b) Within 30 days after the 365th day following the date of an Asset SaleOffer Amount, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice to the Trustee purchase price and the Holders of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3c) that any Notes (Note not tendered or portions thereof) not properly tendered accepted for payment shall continue to accrue interest;
(4d) the purchase price and purchase datethat, which shall beunless ▇▇▇▇ Las Vegas defaults in making such payment, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes Note accepted for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes payment pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Excess Proceeds Offer Notice is delivered shall cease to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on accrue interest after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note purchased pursuant to an Excess Proceeds Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(f) that Holders electing to have a Note purchased pursuant to any Excess Proceeds Offer shall be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to ▇▇▇▇ Las Vegas, the Company Depositary, if appointed by ▇▇▇▇ Las Vegas, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(g) that Holders shall be entitled to withdraw their election if ▇▇▇▇ Las Vegas, the Trustee Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at ; provided that, with respect to Notes that have been tendered using the expiration procedure for book-entry transfer, any such notice of withdrawal shall specify the name number of the Asset Sale Offer Period account at The Depository Trust Company to be credited with the withdrawn Notes and shall otherwise comply with the procedures of the book-entry transfer facility;
(h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company ▇▇▇▇ Las Vegas shall select the Notes to be purchased purchased, if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal securities exchange on which the Notes are listed, or if the Notes are not listed on any national securities exchange, on a pro rata basis basis, by lot or by any other method the Trustee deems fair and appropriate (with such adjustments as may be deemed appropriate by the Company ▇▇▇▇ Las Vegas so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall be purchased). ; and
(i) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, ▇▇▇▇ Las Vegas shall, to the Company delivers extent lawful, accept for payment, if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal securities exchange on which the Notes are listed, or if the Notes are not listed on any national securities exchange, on a pro rata basis, by lot or by any other method the Trustee deems fair and appropriate, to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Excess Proceeds Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ ' Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and ▇▇▇▇ Las Vegas in accordance with the terms of this Section 4.103.10. A Note shall be deemed to have been accepted for purchase at ▇▇▇▇ Las Vegas, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by ▇▇▇▇ Las Vegas for purchase, and ▇▇▇▇ Las Vegas shall promptly issue a new Note, and the Trustee, upon written request from ▇▇▇▇ Las Vegas shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by ▇▇▇▇ Las Vegas to the Holder thereof. ▇▇▇▇ Las Vegas shall publicly announce the results of the Excess Proceeds Offer on the Purchase Date. Other than as specifically provided in this Section 3.10, any purchase pursuant to this Section 3.10 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (Wynn Resorts LTD)
Offer to Purchase by Application of Excess Proceeds. (a) In Subject to the event thatlast paragraph of this Section 3.08, pursuant to Section 4.10, when the Company shall be required to commence an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date cumulative amount of an Asset SaleExcess Proceeds that have not been applied in accordance with this Section 3.08 exceeds $5.0 million, the Company shall, if it is obligated to within 30 days thereafter, make an Asset Sale offer to all Holders of Exchange Debentures (an "Excess Proceeds Offer") to purchase the maximum principal amount of Exchange Debentures that may be purchased out of such Excess Proceeds, at an offer price in cash in an amount equal to 101% of the outstanding principal amount thereof plus accrued and unpaid interest, if any, to the date fixed for the closing of such offer in accordance with the procedures specified below. The Excess Proceeds Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than five Business Days after the termination of the Offer Period (the "Purchase Date"), the Company shall purchase the maximum principal amount of Exchange Debentures that may be purchased with such Excess Proceeds (which maximum principal amount of Exchange Debentures shall be the "Offer Amount") or, if less than the Offer Amount has been tendered, all Exchange Debentures tendered in response to the Excess Proceeds Offer. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued interest shall be paid to the Person in whose name an Exchange Debenture is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Exchange Debentures pursuant to the Excess Proceeds Offer. Upon the commencement of any Excess Proceeds Offer, deliver the Company shall send, by first class mail, a written Asset Sale Offer notice to the Trustee and each of the Holders of the Notes (Exchange Debentures, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice shall contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders to tender Exchange Debentures pursuant to the Excess Proceeds Offer. The notice, which shall govern the terms of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the CompanyExcess Proceeds Offer, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1a) that the Company Excess Proceeds Offer is offering to purchase Notes being made pursuant to this Section 3.08 and the provisions length of this Indenturetime the Excess Proceeds Offer shall remain open;
(2b) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3c) that any Notes (Exchange Debenture not tendered or portions thereof) not properly tendered accepted for payment shall continue to accrue interest;
(4d) the purchase price and purchase date, which shall be, subject to that any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes Exchange Debenture accepted for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes payment pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Excess Proceeds Offer Notice is delivered shall cease to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on accrue interest after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note an Exchange Debenture purchased pursuant to any Excess Proceeds Offer shall be required to surrender the NoteExchange Debenture, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" on the reverse of the Exchange Debenture completed, to the Company Company, a depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three business days before the Purchase Date. ;
(f) that Holders shall be entitled to withdraw their election if the Trustee Company, depositary or Paying Agent, as the Company receives case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was Exchange Debenture the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note the Exchange Debenture purchased. If at the expiration of the Asset Sale Offer Period ;
(g) that, if the aggregate principal amount of Notes Exchange Debentures surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes Exchange Debentures to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes Exchange Debentures surrendered by Holders in denominations of $2,0001,000, or integral multiples thereof, are purchased in integral multiples of $1,000 and Exchange Debentures in excess thereofdenominations of less than $1,000 may be purchased in full, shall be purchasedif at all, at the option of the Company). ; and
(h) that Holders whose Notes are Exchange Debentures were purchased only in part shall be issued new Notes Exchange Debentures equal in principal amount to the unpurchased portion of the Notes Exchange Debentures surrendered.
(f) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holder.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company is required to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it shall follow the procedures specified below. The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than three Business Days after the termination of the Offer Period (the "Purchase Date"), the Company shall apply all Excess Proceeds (the "Offer Amount") to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be required made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to commence the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallshall send, if it is obligated to make an Asset Sale Offerby first class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice shall contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice Offer, shall state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.10 and Section 4.10 hereof and the provisions length of this Indenturetime the Asset Sale Offer will remain open;
(2) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (Note not tendered or portions thereof) not properly tendered shall accepted for payment will continue to accrue interest;
(4) that, unless the purchase price and purchase dateCompany defaults in making such payment, which shall be, subject any Note accepted for payment pursuant to any contrary requirements of applicable law, no less than 30 days nor more than 60 days the Asset Sale Offer will cease to accrue interest after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" attached to the Notes completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall will be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders holders thereof exceeds the Asset Sale Offer Amount, the Company shall will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall will be purchased). ; and
(9) that Holders whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ ' Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.10. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company, shall authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 3.10, any purchase pursuant to this Section 3.10 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (Titan Distribution, Inc)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 or 4.16 hereof, the Company shall be W▇▇▇ Las Vegas is required to commence an Asset Sale Offer or an Event of Loss Offer (each Asset Sale Offer or Event of Loss Offer is referred to in this Section 3.10 as an “Excess Proceeds Offer”), it shall follow the additional procedures specified below.. The Excess Proceeds Offer shall be made to all Holders and any holders of Pari Passu Debt. The Excess Proceeds Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), W▇▇▇ Las Vegas shall apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and any such Pari Passu Debt to be purchased (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and any such Pari Passu Debt tendered in response to the Excess Proceeds Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Liquidated Damages, if any, shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Excess Proceeds Offer. W▇▇▇ Las Vegas shall provide the Trustee with notice of the Excess Proceeds Offer at least 10 days (or such lesser time as the Trustee shall permit) prior to its commencement. Upon the commencement of an Excess Proceeds Offer, W▇▇▇ Las Vegas shall send, by first class mail, a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Excess Proceeds Offer. The notice, which shall govern the terms of the Excess Proceeds Offer, shall state:
(a) that the Excess Proceeds Offer is being made pursuant to this Section 3.10 and Section 4.10 or Section 4.16 hereof, as appropriate, and the length of time the Excess Proceeds Offer shall remain open;
(b) Within 30 days after the 365th day following the date of an Asset SaleOffer Amount, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice to the Trustee purchase price and the Holders of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3c) that any Notes (Note not tendered or portions thereof) not properly tendered accepted for payment shall continue to accrue interest;
(4d) the purchase price and purchase datethat, which shall beunless W▇▇▇ Las Vegas defaults in making such payment, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes Note accepted for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes payment pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Excess Proceeds Offer Notice is delivered shall cease to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on accrue interest after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note purchased pursuant to an Excess Proceeds Offer may elect to have Notes purchased in denominations of $2,000 or integral multiples of $1,000 in excess of $2,000 only;
(f) that Holders electing to have a Note purchased pursuant to any Excess Proceeds Offer shall be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to W▇▇▇ Las Vegas, the Company Depositary, if appointed by W▇▇▇ Las Vegas, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(g) that Holders shall be entitled to withdraw their election if W▇▇▇ Las Vegas, the Trustee Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at ; provided that, with respect to Notes that have been tendered using the expiration procedure for book-entry transfer, any such notice of withdrawal shall specify the name number of the Asset Sale Offer Period account at The Depository Trust Company to be credited with the withdrawn Notes and shall otherwise comply with the procedures of the book-entry transfer facility;
(h) that, if the aggregate principal amount of Notes surrendered by Holders and Pari Passu Debt surrendered by holders thereof exceeds the Asset Sale Offer Amount, the Company W▇▇▇ Las Vegas shall select the Notes and such Pari Passu Debt to be purchased purchased, on a pro rata basis basis, based on the principal amount of Notes and such Pari Passu Debt surrendered (with such adjustments as may be deemed appropriate by the Company W▇▇▇ Las Vegas so that only Notes in denominations of $2,000, 2,000 or integral multiples of $1,000 in excess thereofof $2,000, shall be purchased). ; and
(i) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, W▇▇▇ Las Vegas shall, to the Company delivers extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes and, if applicable, Pari Passu Debt, or portions thereof tendered pursuant to the Excess Proceeds Offer, or if less than the Offer Amount has been tendered, all Notes and if applicable, Pari Passu Debt, tendered, and shall deliver or caused to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Certificate stating that such Notes are to be and, if applicable, Pari Passu Debt, or portions thereof were accepted for payment by the Company pursuant to and W▇▇▇ Las Vegas in accordance with the terms of this Section 4.103.10. A Note shall be deemed to have been accepted for purchase at W▇▇▇ Las Vegas, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by W▇▇▇ Las Vegas for purchase, and W▇▇▇ Las Vegas shall promptly issue a new Note, and the Trustee, upon written request from W▇▇▇ Las Vegas shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by W▇▇▇ Las Vegas to the Holder thereof. W▇▇▇ Las Vegas shall publicly announce the results of the Excess Proceeds Offer on the Purchase Date. Other than as specifically provided in this Section 3.10, any purchase pursuant to this Section 3.10 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (Wynn Resorts LTD)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company is required to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it shall follow the procedures specified below. The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase with the proceeds of sales and assets. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than three Business Days after the termination of the Offer Period (the "Purchase Date"), the Company shall apply all Excess Proceeds (the "Offer Amount") to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be required made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to commence the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallshall send, if it is obligated to make an Asset Sale Offerby first class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The written notice shall contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The written notice, which at a minimum shall include (A) govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice Offer, shall state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.07 and Section 4.10 hereof and the provisions length of this Indenturetime the Asset Sale Offer shall remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note (not tendered or any portion thereof) accepted for payment shall continue to accrue interest;
(and duly paid on 4) that, unless the Purchase Date) Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on after the Purchase Date;
(35) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall be purchased). ; and
(9) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Officer's Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.07. A Note shall be deemed to have been accepted for purchase at The Company, either directly or through the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company and receipt of an Authentication Order shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 3.07, any purchase pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.02 through 3.04 hereof.
Appears in 1 contract
Sources: Indenture (Calpine Corp)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section Section 4.10, the Company shall be Issuer is required to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it shall follow the procedures specified below. The Asset Sale Offer shall be made to all Holders and if the Issuer elects (or is required by the terms of other pari passu indebtedness), all holders of other Indebtedness that is pari passu with the Notes. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than five Business Days after the termination of the Offer Period (the "Purchase Date"), the Issuer shall apply all Excess Proceeds (the "Offer Amount") to the purchase of Notes and such other pari passu Indebtedness, if any, (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made pursuant to Section 4.01. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Interest, if any, shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it the Issuer shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Salesend, the Company shallby first class mail, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice shall contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice Offer, shall state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 and the provisions length of this Indenturetime the Asset Sale Offer shall remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note (not tendered or any portion thereof) accepted for payment shall continue to accrue interest;
(and duly paid on 4) that, unless the Purchase Date) Issuer defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on after the Purchase Date;
(35) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" attached to the Notes completed, or transfer by book-entry transfer, to the Company Issuer, a Depositary, if appointed by the Issuer, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall be entitled to withdraw their election if the Trustee Issuer, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to on the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders holders thereof exceeds the Asset Sale Offer Amount, the Company Issuer shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company Issuer so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall be purchased). ; and
(9) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers Issuer shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Officer's Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and Issuer in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Issuer, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Issuer for purchase, and the Issuer shall promptly issue a new Note, and the Trustee, upon written request from the Issuer, shall authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer shall publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be required to commence an Excess Proceeds Offer or a Major Asset Sale Offer, it the Company shall follow the additional procedures specified below.
(b) Within 30 days after . The Excess Proceeds Offer or the 365th day following the date of an Asset Sale, the Company shall, if it is obligated to make an Major Asset Sale Offer, deliver as the case may be, shall remain open for a written Asset Sale Offer notice period of 20 Business Days following its commencement and no longer, except to the Trustee and extent that a longer period is required by applicable law (the Holders "Offer Period"). No later than five Business Days after the termination of the Notes Offer Period (the “Asset Sale Offer Notice”"Purchase Date"), accompanied by such information regarding the Company shall purchase the principal amount of Notes required to be purchased pursuant to Section 4.10 hereof (the "Offer Amount") or, if less than the Offer Amount has been tendered, all Notes validly tendered in response to the Excess Proceeds Offer. Payment for any Notes so purchased shall be made in the same manner as principal payments are made at Stated Maturity. The Parent Guarantor shall not and its Subsidiaries as shall not permit any Restricted Subsidiary to enter into or suffer to exist any agreement that would place any restriction of any kind (other than pursuant to law or regulation) on the ability of the Company believes shall enable such Holders of the Notes to make an informed decision Excess Proceeds Offer. Further, the Company shall comply with respect the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the Asset Sale Offer (which at extent such laws and regulations are applicable in connection with the purchase of Notes as a minimum shall include (A) result of an Excess Proceeds Offer. To the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) extent that the provisions of any securities laws or regulations conflict with the Companyprovisions relating to an Excess Proceeds Offer, the most recent subsequently filed Quarterly Report Company 44 52 shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described above by virtue thereof. If the Purchase Date is on Form 10-Q of or after an interest record date and on or before the Company related interest payment date, any accrued and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Reportunpaid interest and Liquidated Damages, other than Current Reports describing Asset Sales otherwise described in the offering materialsif any, or corresponding successor reports (or, during any time that the Company is not subject shall be paid to the reporting requirements Person in whose name a Note is registered at the close of Section 13 business on such record date, and no additional interest or 15(d) of the Exchange ActLiquidated Damages, corresponding reports prepared pursuant if any, shall be payable to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase Holders who tender Notes pursuant to the provisions of this Indenture;
(2) that any Note (Excess Proceeds Offer or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Major Asset Sale Offer, as the case may be. Upon the commencement of an Excess Proceeds Offer shall cease to accrue interest on or the Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) Major Asset Sale Offer, as the purchase price and purchase date, which shall case may be, subject to any contrary requirements of applicable lawthe Company shall send, no not less than 30 days nor more than 60 days after before the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes , by first class mail, a notice to be purchased;
(6) a description each of the procedure which Holders of Notes must follow in order Holders, with a copy to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) Trustee. The notice shall contain all other instructions and materials necessary to enable such Holders to tender Notes pursuant to the Excess Proceeds Offer or the Major Asset Sale Offer., as the case may be. The Excess Proceeds Offer or the Major Asset Sale Offer, as the case may be shall be made to all Holders. The notice, which shall govern the terms of the Excess Proceeds Offer or the Major Asset Sale Offer, as the case may be, shall state:
(a) that the Excess Proceeds Offer or the Major Asset Sale Offer, as the case may be is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Excess Proceeds Offer or the Major Asset Sale Offer, as the case may be, shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that Holders may elect to tender their Notes in whole or in integral multiples of $1,000 principal amount in exchange for cash and that any Note not tendered or accepted for payment shall continue to accrue interest and Liquidated Damages, if any;
(d) Not later than that, unless the date upon which Company defaults in making such payment, any Note accepted for payment pursuant to the Excess Proceeds Offer or the Major Asset Sale Offer Notice is delivered Offer, as the case may be, shall cease to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made accrue interest and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (orLiquidated Damages, if the Company is the Paying Agentany, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note purchased pursuant to an Excess Proceeds Offer or the Major Asset Sale Offer, as the case may be, may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any Excess Proceeds Offer or the Major Asset Sale Offer, as the case may be, shall be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, to the Company or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(g) that Holders shall be entitled to withdraw their election if the Trustee Company or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(f) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holder.principal
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be required to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it shall follow the additional procedures specified below.
. The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (b) Within 30 days the "Offer Period"). No later than three Business Days after the 365th day following termination of the date of an Asset SaleOffer Period (the "Purchase Date"), the Company shallshall apply all Excess Proceeds (the "Offer Amount") to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if it applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is obligated on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Special Interest, if any, shall be paid to make the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, deliver the Company shall send, by first class mail, a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (the “Asset Sale Offer Notice”)Holders, accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect a copy to the Asset Sale Offer (which at a minimum Trustee. The notice shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) contain all other instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than . The notice, which shall govern the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount terms of the Asset Sale Offer Offer, shall state:
(a) that the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer will remain open;
(3b) the compliance of such allocation with the provisions of Section 4.10(a). On such dateOffer Amount, the Company shall also irrevocably deposit with purchase price and the Trustee Purchase Date;
(c) that any Note not tendered or with the Paying Agent accepted for payment will continue to accrue interest;
(ord) that, if unless the Company is the Paying Agentdefaults in making such payment, shall segregate and hold in trust) in cash an amount equal any Note accepted for payment pursuant to the Asset Sale Offer Amount will cease to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on accrue interest after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note purchased shall pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(f) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" attached to the Notes completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(g) that Holders shall will be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder H▇▇▇▇▇ is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(h) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders holders thereof exceeds the Asset Sale Offer Amount, the Company shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof1,000, shall will be purchased). ; and
(i) that Holders whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ ' Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company, shall authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (Belden & Blake Corp /Oh/)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be required to commence an offer to all Holders of Notes and, to the extent required by the terms thereof, to all holders or lenders of Pari Passu Indebtedness, to purchase Notes and any such Pari Passu Indebtedness (an "Asset Sale Offer"), it shall follow the additional procedures specified below.
. The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (b) Within 30 days the "Offer Period"). No later than five Business Days after the 365th day following termination of the date of an Asset SaleOffer Period (the "Purchase Date"), the Company shallshall purchase the principal amount of Notes required to be purchased pursuant to Section 4.10 hereof (the "Offer Amount") or, if it is obligated to make an Asset Sale Offerless than the Offer Amount has been tendered, deliver a written Asset Sale Offer notice to the Trustee and the Holders of the all Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect tendered in response to the Asset Sale Offer (which at a minimum Offer. Payment for any Notes so purchased shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described be made in the offering materialssame manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, or corresponding successor reports (or, during any time that the Company is not subject accrued and unpaid interest shall be paid to the reporting requirements Person in whose name a Note is registered at the close of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of on such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase record date, which and no additional interest shall be, subject be payable to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to who tender Notes pursuant to the Asset Sale Offer.
(d) Not later than . Upon the date upon which the commencement of an Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08Offer, the Company shall deliver send, by first class mail, a notice to the Trustee an Officers’ Certificate as to (1) the amount and each of the Asset Sale Offer (the “Asset Sale Offer Amount”)Holders, (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal a copy to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the CompanyTrustee. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent notice shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Company or its agent at the address specified in the notice at least 3 Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than 1 Business Day prior to the Purchase Date, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(f) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holder.contain
Appears in 1 contract
Sources: Indenture (Forcenergy Inc)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.14 hereof, the Company is required to commence an offer to all Holders to purchase Notes (“Asset Sale Offer”), it shall follow the procedures specified below. The Asset Sale Offer shall be made to all Holders of Notes and all holders of other Pari Passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company shall apply a portion of the Excess Proceeds as calculated pursuant to Section 4.14 hereof (the “Offer Amount”) to the purchase of Notes and such other Pari Passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all of such Notes and other Pari Passu Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be required to commence made in the same manner as interest payments are made. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallshall send, if it is obligated to make an Asset Sale Offerby first-class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company applicable Holders. The notice will contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) will govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall Offer, will state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.14 and Section 4.14 hereof and the provisions length of this Indenturetime the Asset Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that with respect to any Notes, any Note (not tendered or any portion thereof) accepted for payment will continue to accrue interest;
(and duly paid on 4) that, unless the Purchase Date) Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on after the Purchase Date;
(35) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase datethat, which shall be, subject with respect to any contrary requirements of applicable lawNotes, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have such Notes purchased in a principal amount of $2,000 (or in integral multiples of $1,000 in excess thereof) only;
(6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Company, the Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall be entitled to withdraw their election if the Trustee Company or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder ▇▇▇▇▇▇ is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of any Notes and other Pari Passu Indebtedness surrendered by Holders exceeds in connection with the Asset Sale Offer exceeds the Offer Amount, the Company shall select the Notes and other Pari Passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other Pari Passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only such Notes in denominations of $2,000, 2,000 (or integral multiples of $1,000 in excess thereof), shall will be purchased). ; and
(9) that Holders of any Notes whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of such Notes surrendered (or transferred by book-entry transfer). On or before the Notes surrendered.
(f) At the time Purchase Date, the Company delivers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of the applicable Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all such Notes tendered, and shall deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.14. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company, shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Purchase Date. Other than as specifically provided in this Section 3.14, any purchase pursuant to this Section 3.14 shall be made pursuant to the provisions of Sections 3.1 through 3.6 hereof.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be is required to commence an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it will follow the procedures specified below. The Asset Sale Offer shall be made to all Holders and all holders of Pari Passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount") to the purchase of Notes and such Pari Passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Pari Passu Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Special Interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallwill send, if it is obligated to make an Asset Sale Offerby first class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Holders. The notice will contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) will govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall Offer, will state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 hereof and the provisions length of this Indenturetime the Asset Sale Offer will remain open;
(2) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (Note not tendered or portions thereof) not properly tendered shall accepted for payment will continue to accrue interest;
(4) that, unless the purchase price and purchase dateCompany defaults in making such payment, which shall be, subject any Note accepted for payment pursuant to any contrary requirements of applicable law, no less than 30 days nor more than 60 days the Asset Sale Offer will cease to accrue interest after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $2,000 or an integral multiple of $1,000 in excess thereof;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall will be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, electronic image scan, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder ▇▇▇▇▇▇ is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and other Pari Passu Indebtedness surrendered by Holders holders thereof exceeds the Asset Sale Offer Amount, the Company shall Trustee will select the Notes and other Pari Passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other Pari Passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiples multiple of $1,000 in excess thereof, shall will be purchased). ; and
(9) that Holders whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.
Appears in 1 contract
Sources: Indenture (Holly Corp)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.14 hereof, the Company is required to commence an offer to all Holders to purchase Notes (“Asset Sale Offer”), it shall follow the procedures specified below. The Asset Sale Offer shall be made to all Holders of Notes and all holders of other pari passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company shall apply a portion of the Excess Proceeds as calculated pursuant to Section 4.14 hereof (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all of such Notes and other pari passu Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be required to commence made in the same manner as interest payments are made. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallshall send, if it is obligated to make an Asset Sale Offerby first-class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company applicable Holders. The notice will contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) will govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall Offer, will state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.14 and Section 4.14 hereof and the provisions length of this Indenturetime the Asset Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that with respect to any Notes, any Note (not tendered or any portion thereof) accepted for payment will continue to accrue interest;
(and duly paid on 4) that, unless the Purchase Date) Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on after the Purchase Date;
(35) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase datethat, which shall be, subject with respect to any contrary requirements of applicable lawNotes, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have such Notes purchased in a principal amount of $2,000 (or in integral multiples of $1,000 in excess thereof) only;
(6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Company, the Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall be entitled to withdraw their election if the Trustee Company or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder ▇▇▇▇▇▇ is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of any Notes and other pari passu Indebtedness surrendered by Holders exceeds in connection with the Asset Sale Offer exceeds the Offer Amount, the Company shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only such Notes in denominations of $2,000, 2,000 (or integral multiples of $1,000 in excess thereof), shall will be purchased). ; and
(9) that Holders of any Notes whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of such Notes surrendered (or transferred by book-entry transfer). On or before the Notes surrendered.
(f) At the time Purchase Date, the Company delivers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of the applicable Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all such Notes tendered, and shall deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.14. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company, shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Purchase Date. Other than as specifically provided in this Section 3.14, any purchase pursuant to this Section 3.14 shall be made pursuant to the provisions of Sections 3.1 through 3.6 hereof.
Appears in 1 contract
Sources: Indenture (Valeant Pharmaceuticals International, Inc.)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section Section 4.10, the Company Issuer shall be required to commence an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Each Asset Sale Offer notice shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the Trustee and the Holders of the Notes extent that a longer period is required by applicable law (the “Asset Sale Offer NoticePeriod”). No later than five Business Days after the termination of the Asset Sale Offer Period (the “Asset Sale Offer Settlement Date”), accompanied by such information regarding the Company and its Subsidiaries as Issuer shall apply all Excess Proceeds (the Company believes shall enable such Holders “Asset Sale Offer Amount”) to the purchase of the Notes to make an informed decision with respect and unsubordinated Indebtedness of the Parent or the applicable Restricted Subsidiary as specified in Section 4.10 or, if less than the Asset Sale Offer Amount has been validly tendered (and not validly withdrawn), all Notes and unsubordinated Indebtedness of the Parent or such Restricted Subsidiary, as applicable, validly tendered (and not validly withdrawn) in response to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information)Offer.
(c) Upon the commencement of an Asset Sale Offer, the Issuer shall send, by first class mail, a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer Notice shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state, among other things:
(1i) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 and the provisions length of this Indenturetime the Asset Sale Offer shall remain open, including the time and date the Asset Sale Offer will terminate (the “Asset Sale Offer Termination Date”);
(2ii) the Offer Amount, the purchase price and the Asset Sale Offer Settlement Date;
(iii) that any Note (not tendered or any portion thereof) accepted for payment shall continue to accrue interest;
(and duly paid on iv) that, unless the Purchase Date) Issuer defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Purchase Asset Sale Offer Settlement Date;
(3v) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, properly endorsed for transfer, together with an appropriate the form duly completedentitled “Option of Holder to Elect Purchase” on the reverse of the Note completed and such customary documents as the Issuer may reasonably request, to the Company Issuer or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to notice, before the Purchase Asset Sale Offer Termination Date. ;
(vi) that Holders shall be entitled to withdraw their election if the Trustee Issuer or the Company receives not later than 1 Business Day Paying Agent, as the case may be, receives, prior to the Purchase Asset Sale Offer Termination Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his its election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(vii) that, if the aggregate principal amount of Notes surrendered by Holders and, in the case of Excess Proceeds received in respect of assets not constituting Collateral, unsubordinated Indebtedness of the Parent or the applicable Restricted Subsidiary surrendered by holders thereof, collectively, exceeds the Asset Sale Offer Amount, the Company Trustee shall select the Notes to be purchased from the amount allocated therefor on a pro rata basis basis, by lot to the extent practicable or, in the case of Global Notes, by such other method in accordance with the applicable procedures of the Depositary (with such adjustments as may be deemed appropriate by the Company Trustee so that only Notes in denominations of $2,000, or 200,000 and integral multiples of $1,000 in excess thereofthereof will be outstanding after such purchase) and, shall if applicable, the Issuer will select such unsubordinated Indebtedness for purchase or redemption based on amounts tendered or required to be purchased). prepaid; and
(viii) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(f) At , which unpurchased portion must be equal to $200,000 in principal amount or an integral multiple of $1,000 in excess thereof. Promptly after the time Asset Sale Offer Termination Date, the Company delivers Notes Issuer shall, to the Trustee which are extent lawful, accept for payment Notes or portions thereof tendered pursuant to be the Asset Sale Offer in the aggregate principal amount required by Section 4.10. Prior to 11:00 a.m., New York City time, on the Asset Sale Offer Settlement Date, the Issuer, the Depositary or the Paying Agent, as the case may be, shall mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Issuer for purchase, and the Company Issuer shall also promptly issue a new Note, and the Trustee shall, upon its receipt of an authentication order from the Issuer, authenticate and mail or deliver an Officers’ Certificate stating that such Notes are (or cause to be transferred by book-entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor Issuer to the surrendering HolderHolder thereof. The Issuer shall publicly announce the results of the Asset Sale Offer on or before the Asset Sale Offer Settlement Date.
Appears in 1 contract
Sources: Indenture (Pacific Drilling S.A.)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section Section 4.10, the Company shall be is required to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it shall follow the procedures specified below. The Asset Sale Offer shall be made to all Holders and, at the option of the Company, all holders of other Indebtedness that is pari passu with the Notes. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than three Business Days after the termination of the Offer Period (the "Purchase Date"), the Company shall apply all Excess Proceeds (the "Offer Amount") to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Liquidated Damages, if any, shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallshall send, if it is obligated to make an Asset Sale Offerby first class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Holders. The notice shall contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice Offer, shall state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 and the provisions length of this Indenturetime the Asset Sale Offer shall remain open;
(2) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (Note not tendered or portions thereof) not properly tendered accepted for payment shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall be required to surrender the Note, with an appropriate form duly completed, to the Company or its agent at the address specified in the notice at least 3 Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than 1 Business Day prior to the Purchase Date, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(f) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holder.
Appears in 1 contract
Sources: Indenture (Platte Chemical Co)
Offer to Purchase by Application of Excess Proceeds. (a) In When the event thatcumulative amount of Excess Proceeds that have not been applied in accordance with Section 4.10 and 4.16 herein or this Section 3.09, pursuant to Section 4.10exceeds $17.5 million, the Company shall be required to commence an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice offer to the Trustee and the all Holders of the Notes (an "EXCESS PROCEEDS OFFER") to purchase the “Asset Sale Offer Notice”)maximum principal amount of Notes that may be purchased out of such Excess Proceeds at an offer price in cash in an amount equal to 101% of the principal amount thereof, accompanied by together with accrued and unpaid interest to the date fixed for the closing of such information regarding offer in accordance with the procedures set forth in this Section 3.09. To the extent the Company and its Subsidiaries as or a Restricted Subsidiary is required under the terms of Indebtedness of the Company believes shall enable or such Holders Restricted Subsidiary which is PARI PASSU with, or (in the case of the Notes to make an informed decision any secured Indebtedness) senior with respect to such collateral to, the Asset Sale Notes with any proceeds which constitute Excess Proceeds under this Indenture, the Company shall make a pro rata offer to the holders of all other PARI PASSU Indebtedness (including the Notes) with such proceeds. If the aggregate principal amount of Notes and other PARI PASSU Indebtedness surrendered by holders thereof exceeds the amount of such Excess Proceeds, the Trustee shall select the Notes and other PARI PASSU Indebtedness to be purchased on a PRO RATA basis. The Excess Proceeds Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the "OFFER PERIOD"). No later than five Business Days after the termination of the Offer Period (the "PURCHASE DATE"), the Company shall purchase the maximum principal amount of Notes that may be purchased with such Excess Proceeds (which at a minimum maximum principal amount of Notes shall include (Abe the "OFFER AMOUNT") the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that if less than the Company is not subject Offer Amount has been tendered, all Notes tendered in response to the reporting requirements of Section 13 Excess Proceeds Offer. If the Purchase Date is on or 15(d) of after an interest record date and on or before the Exchange Actrelated interest payment date, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent any accrued interest shall be paid to the date Person in whose name a Note is registered at the close of the latest of business on such reports record date, and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice no additional interest shall state, among other things:
(1) that the Company is offering be payable to purchase Holders who tender Notes pursuant to the provisions Excess Proceeds Offer. Upon the commencement of any Excess Proceeds Offer, the Company shall send, by first class mail, a notice to each of the Holders of the Notes, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Excess Proceeds Offer. The notice, which shall govern the terms of the Excess Proceeds Offer, shall state:
(a) that the Excess Proceeds Offer is being made pursuant to this IndentureSection 3.09 and the length of time the Excess Proceeds Offer shall remain open;
(2b) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3c) that any Notes (Note not tendered or portions thereof) not properly tendered accepted for payment shall continue to accrue interest;
(4d) the purchase price and purchase date, which shall be, subject to that any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes Note accepted for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes payment pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Excess Proceeds Offer Notice is delivered shall cease to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on accrue interest after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note purchased pursuant to any Excess Proceeds Offer shall be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, to the Company Company, a depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three business days before the Purchase Date. ;
(f) that Holders shall be entitled to withdraw their election if the Trustee Company, depositary or Paying Agent, as the Company receives case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder ▇▇▇▇▇▇ is withdrawing his election to have such the Note purchased. If at the expiration of the Asset Sale Offer Period ;
(g) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes to be purchased on a pro rata PRO RATA basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall be purchased). ; and
(h) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(f) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holder.
Appears in 1 contract
Sources: Indenture (Echostar DBS Corp)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be Co-Issuers are required to commence an Asset Sale Excess Proceeds Offer, it shall they will follow the additional procedures specified below.
. The Excess Proceeds Offer shall be made to all Holders of the Notes, and, as applicable, (bi) Within if required by the terms of any other First Lien Obligations, to all holders of such other First Lien Obligations, and (ii) if required under the terms of other Indebtedness of the Company or a Restricted Subsidiary, to all holders of such other Indebtedness, in each case containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets. The Excess Proceeds Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 days Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the 365th day following termination of the Offer Period (the “Purchase Date”), the Co-Issuers will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and, as applicable, such other First Lien Obligations or other Indebtedness (on a pro rata basis based on the principal amount of Notes and, as applicable, such other First Lien Obligations or other Indebtedness surrendered, if applicable) or, if less than the Offer Amount has been surrendered, all Notes and, as applicable, such other First Lien Obligations or other Indebtedness, as applicable, surrendered in response to the Excess Proceeds Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Excess Proceeds Offer. Upon the commencement of an Asset SaleExcess Proceeds Offer, the Company shallCo-Issuers will send, if it is obligated to make an Asset Sale Offerby first class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Trustee, at least 30 days but not more than 60 days before the Purchase Date. The notice will contain a description of the transaction or transactions that constitute the Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall all instructions and materials necessary to enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase tender Notes pursuant to the provisions Excess Proceeds Offer. The notice, which will govern the terms of the Excess Proceeds Offer, will state:
(a) that the Excess Proceeds Offer is being made pursuant to this IndentureSection 3.09 and Section 4.10 hereof and the length of time the Excess Proceeds Offer will remain open;
(2b) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3c) that any Notes (Note not tendered or portions thereof) not properly tendered shall accepted for payment will continue to accrue interest;
(4d) that, unless the purchase price and purchase dateCo-Issuers default in making such payment, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes Note accepted for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes payment pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Excess Proceeds Offer Notice is delivered will cease to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on accrue interest after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note purchased shall pursuant to an Excess Proceeds Offer may elect to have Notes purchased in denominations of $2,000 or an integral multiple of $1,000 in excess thereof;
(f) that Holders electing to have Notes purchased pursuant to any Excess Proceeds Offer will be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company Co-Issuers, a Depositary, if appointed by the Co-Issuers, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(g) that Holders shall will be entitled to withdraw their election if the Trustee Co-Issuers, the Depositary or the Company receives Paying Agent, as the case may be, receive, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, electronic image scan, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder ▇▇▇▇▇▇ is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(h) that, if the aggregate principal amount of Notes and, as applicable, other First Lien Obligations or other Indebtedness surrendered by Holders holders thereof exceeds the Asset Sale Offer Amount, the Company shall Co-Issuers will select the Notes and, as applicable, other First Lien Obligations or other Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a note in global form will be selected by such method as DTC may require) based on the principal amount of Notes and, as applicable, such other First Lien Obligations or other Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company Co-Issuers so that only Notes in denominations of $2,000, or an integral multiples multiple of $1,000 in excess thereof, shall will be purchased). ; and
(i) that Holders whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (for transferred by book-entry transfer). On or before the Purchase Date, the Co-Issuers will, to the extent lawful, accept for payment, on a pro rata basis (except that any Notes represented by a note in global form will be selected by such method as DTC may require) At to the time extent necessary, the Company delivers Offer Amount of Notes or portions thereof tendered pursuant to the Excess Proceeds Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and Co-Issuers in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Co-Issuers, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Co-Issuers for purchase, and the Co-Issuers will promptly issue a new Note, and the Trustee, upon written request from the Co-Issuers, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Co-Issuers to the Holder thereof. The Co-Issuers will publicly announce the results of the Excess Proceeds Offer on the Purchase Date. Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be required to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it shall follow the additional procedures specified below.
. The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (b) Within 30 days the "Offer Period"). No later than five Business Days after the 365th day following termination of the date of an Asset SaleOffer Period (the "Purchase Date"), the Company shallshall purchase Accreted Value (if prior to April 1, 2008) or the principal amount (if on or after April 1, 2008) of Notes required to be purchased pursuant to Section 4.10 hereof (the "Offer Amount") or, if it less than the Offer Amount has been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is obligated on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to make the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, deliver the Company shall send, by first class mail, a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (the “Asset Sale Offer Notice”)Holders, accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect a copy to the Asset Sale Offer (which at a minimum Trustee. The notice shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) contain all other instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the . The Asset Sale Offer Notice is delivered shall be made to all Holders. The notice, which shall govern the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount terms of the Asset Sale Offer Offer, shall state:
(a) that the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer shall remain open;
(3b) the compliance of such allocation with the provisions of Section 4.10(a). On such dateOffer Amount, the Company purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall also irrevocably deposit with the Trustee continue to accrete or with the Paying Agent accrue interest;
(ord) that, if unless the Company is the Paying Agentdefaults in making such payment, shall segregate and hold in trust) in cash an amount equal any Note accepted for payment pursuant to the Asset Sale Offer Amount shall cease to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes accrete or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on accrue interest after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(f) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Company, a depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(g) that Holders shall be entitled to withdraw their election if the Trustee Company, the depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(h) that, if the aggregate principal amount (or, if prior to April 1, 2008, Accreted Value) of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(f) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holder.; and
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company is required to commence an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it shall follow the procedures specified below. The Asset Sale Offer shall be made to all Holders and if the Company elects (or is required by the terms of other pari passu indebtedness), all holders of other Indebtedness that is pari passu with the Notes. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than five Business Days after the termination of the Offer Period (the “Purchase Date”), the Company shall apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness, if any, (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be required made pursuant to commence Section 4.01 hereof. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Special Interest, if any, shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallshall send, if it is obligated to make an Asset Sale Offerby first class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice shall contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice Offer, shall state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 hereof and the provisions length of this Indenturetime the Asset Sale Offer shall remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note (not tendered or any portion thereof) accepted for payment shall continue to accrue interest;
(and duly paid on 4) that, unless the Purchase Date) Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on after the Purchase Date;
(35) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to on the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders holders thereof exceeds the Asset Sale Offer Amount, the Company shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall be purchased). ; and
(9) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Officer’s Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company, shall promptly issue a new Note, and the Trustee, upon written request from the Company shall authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (Kraton Polymers LLC)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company is required to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it shall follow the procedures specified below. The Asset Sale Offer shall be made to all Holders of Notes, and at the Company's option, to all holders of other Indebtedness that is pari passu with the Notes (including, without limitation, the 2013 Notes). The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than three Business Days after the termination of the Offer Period (the "Purchase Date"), the Company shall apply all Excess Proceeds (the "Offer Amount") to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be required made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, and Special Interest, if any, will be paid to commence the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallwill send, if it is obligated to make an Asset Sale Offerby first class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice will contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) will govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall Offer, will state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 hereof and the provisions length of this Indenturetime the Asset Sale Offer will remain open;
(2) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (Note not tendered or portions thereof) not properly tendered shall accepted for payment will continue to accrue interest;
(4) that, unless the purchase price and purchase dateCompany defaults in making such payment, which shall be, subject any Note accepted for payment pursuant to any contrary requirements of applicable law, no less than 30 days nor more than 60 days the Asset Sale Offer will cease to accrue interest after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" attached to the Note completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall will be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(f) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holder.;
Appears in 1 contract
Sources: Indenture (Fort James Corp)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 5.05, the Company shall be required to commence an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it shall follow the additional procedures specified belowin this Section 4.10. Each Asset Sale Offer shall remain open for not less than ten (10) Business Days nor more than sixty (60) days immediately following its commencement, except to the extent that a longer period is required by Applicable Law (the “Offer Period”).
(b) Within 30 days after Upon the 365th day following the date commencement of an Asset Sale, the Company shall, if it is obligated to make an Asset Sale Offer, deliver the Company shall send, by first class mail, a written Asset Sale Offer notice to the Trustee and each of the Holders of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) contain all other instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the . The Asset Sale Offer Notice is delivered shall be made to all Holders. The notice, which shall govern the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount terms of the Asset Sale Offer Offer, shall state:
(i) that the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made pursuant to this Section 4.10 and (3) Section 5.05 and the compliance length of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to time the Asset Sale Offer shall remain open;
(ii) the Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(eiii) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly completed, entitled “Option of Holder To Elect Purchase” on the reverse of the Note completed to the Company or its agent at the address specified in the notice at least 3 three Business Days prior to before the Purchase Date. ;
(iv) that Holders shall be entitled to withdraw their election if the Trustee or the Company receives receives, not later than 1 the second Business Day prior to the Purchase Dateexpiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder H▇▇▇▇▇ is withdrawing his election to have such Note purchased. If at ; and (v) other information required to be included pursuant to Section 3.03.
(c) On or before the expiration Business Day immediately after the termination of the Offer Period (the “Purchase Date”), the Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, Notes or portions thereof tendered pursuant to the Asset Sale Offer Period with an aggregate principal amount equal to the aggregate principal amount required to be purchased pursuant to Section 5.05 plus accrued and unpaid interest, if any, thereon to the Purchase Date (the “Offer Amount”) or, if the aggregate principal amount of Notes surrendered by Holders exceeds tendered is less than the Asset Sale Offer Amount, the Company shall select purchase all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. The Company shall promptly (but in any case not later than five (5) Business Days after the Purchase Date) mail or deliver by wire transfer to each tendering Holder an amount equal to the purchase price of the Notes to be purchased on a pro rata basis (with tendered by such adjustments as may be deemed appropriate Holder and accepted by the Company so that only Notes for purchase, and the Company shall promptly issue a new Note and deliver it to such Holder, in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in a principal amount equal to the any unpurchased portion of the Notes Note surrendered.
(f) At the time the Company delivers Notes to the Trustee which are to . Any Note not so accepted shall be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be accepted promptly mailed or delivered by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering HolderHolder thereof.
Appears in 1 contract
Sources: Indenture (Cincinnati Bell Inc)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company Issuers shall be required to commence a pro rata Asset Sale Offer (as defined in Section 4.10) to all Holders of the Notes and all holders of other Priority Lien Debt containing provisions similar to those set forth in this Section 3.09 and Section 4.10 hereof with respect to offers to purchase or redeem with the Net Cash Proceeds of sales of assets to purchase such Notes and such other Priority Lien Debt, it shall follow the procedures specified below. The Asset Sale Offer shall remain open for a period of at least 30 days following its commencement but no longer than 60 days, except to the extent that a longer period is required by applicable law (the “Offer Period”). Promptly after the termination of the Offer Period (the “Purchase Date”), the Issuers shall purchase the principal amount of Notes and such other Priority Lien Debt required to be purchased pursuant to Section 4.10 hereof (the “Offer Amount”) or, if less than the Offer Amount has been tendered, all Notes and other Priority Lien Debt tendered and not withdrawn in response to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it the Issuers shall follow send, by first class mail (or in the additional procedures specified below.case of Global Notes, in accordance with the Applicable Procedures), a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer shall remain open;
(b) Within 30 days after the 365th day following the date of an Asset SaleOffer Amount, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice to the Trustee purchase price and the Holders of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).Purchase Date;
(c) The Asset Sale Offer Notice that any Note not validly tendered or accepted for payment shall state, among other things:
(1) that the Company is offering continue to purchase Notes pursuant to the provisions of this Indentureaccrue interest;
(2d) that that, unless the Issuers default in making such payment, any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on after the Purchase Date;
(3e) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Issuers, a Depositary, if appointed by the Issuers, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(f) that Holders shall be entitled to withdraw their election if the Trustee Issuers, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, facsimile an electronic transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder ▇▇▇▇▇▇ is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(g) that, if the aggregate principal amount of Notes and other Priority Lien Debt surrendered by Holders the holders thereof exceeds the Asset Sale Offer Amount, the Company Issuers shall select the Notes and other Priority Lien Debt to be purchased on a pro rata basis based on the principal amount of the Notes and such other Priority Lien Debt surrendered (with such adjustments as may be deemed appropriate by the Company Issuers so that only Notes in minimum denominations of $2,000, 2,000 or integral multiples of $1,000 in excess thereof, shall be purchasedremain outstanding after such purchase). ; and
(h) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On the time Purchase Date, the Company delivers Issuers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or if less than the Offer Amount has been validly tendered and not properly withdrawn, all Notes so tendered and not withdrawn, shall deposit by 11:00 a.m., New York City time, with the Paying Agent or Depositary an amount equal to the purchase price in respect of all Notes or portions thereof accepted for payment, and shall deliver to the Trustee which are to be accepted for purchase, an Officer’s Certificate of the Company shall also deliver an Officers’ Certificate Main Issuer stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and Issuers in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Issuers, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly mail or delivers payment therefor electronically send to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Issuers for purchase, and the Issuers shall promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order, shall authenticate and mail or electronically send (or cause to be transferred by book entry) such new Note to such Holder., in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or electronically sent by the Issuers to the Holder
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be required to commence an offer to holders of Notes and Pari Passu Notes (an "Asset Sale Offer") to purchase the maximum principal amount (or accreted value, as applicable, of Notes and Pari Passu Notes that may be purchased out of Excess Proceeds) of Notes and Pari Passu Notes it shall follow the additional procedures specified below.
. The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (b) Within 30 days the "Offer Period"). No later than ------------ five Business Days after the 365th day following termination of the date of an Asset SaleOffer Period (the "Purchase -------- Date"), the Company shallshall purchase the principal amount (or accreted value, as ---- applicable) of Notes and Pari Passu Notes required to be purchased pursuant to Section 4.10 hereof (on a pro rata basis if Notes and Pari Passu Notes tendered are in excess of the Excess Proceeds) (which maximum principal amount of Notes shall be the "Offer Amount") or, if it less than the Offer Amount has been tendered, all Notes and Pari Passu Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is obligated on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to make the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, deliver the Company shall send, by first class mail, a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice shall contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursu- ant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(which at a minimum a) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer shall include remain open;
(Ab) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the CompanyOffer Amount, the most recent subsequently filed Quarterly Report on Form 10-Q of purchase price and the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).Purchase Date;
(c) The Asset Sale Offer Notice that any Note not tendered or accepted for payment shall state, among other things:
(1) that the Company is offering continue to purchase Notes pursuant to the provisions of this Indentureaccrete or accrue interest;
(2d) that that, unless the Company defaults in making such payment, any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrete or accrue interest on after the Purchase Date;
(3e) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to an Asset Sale Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Company, a depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(g) that Holders shall be entitled to withdraw their election if the Trustee Company, the depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(h) that, if the aggregate principal amount (or accreted value, as applicable) of Notes surrendered and Pari Passu Notes tendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall be purchasedpurchased and Pari Passu Notes). ; and
(i) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes, Pari Passu Notes or portions thereof tendered, and shall deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ ' Certificate stating that such Notes, and Pari Passu Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering pur- chase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (Sba Communications Corp)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 or 4.14 hereof, the Company shall be required to commence an Asset Sale offer to all Holders to purchase Notes (an "Repurchase Offer"), it shall follow the additional procedures specified below.
. The Repurchase Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (b) Within 30 days the "Offer Period"). No later than five Business Days after the 365th day following termination of the date of an Asset SaleOffer Period (the "Purchase Date"), the Company shallshall purchase at the purchase price (as determined in accordance with Section 4.10 or 4.14 hereof, as the case may be) the principal amount of Notes required to be purchased pursuant to Section 4.10 or 4.14 hereof, as the case may be, in the aggregate (the "Offer Amount") or, if it less than the Offer Amount has been tendered, all Notes tendered in response to such Repurchase Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is obligated on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Special Interest, if any, shall be paid to make an Asset Sale the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to such Repurchase Offer. Upon the commencement of a Repurchase Offer, deliver the Company shall send, by first class mail, a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Holders. The notice shall contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent pursuant to such Quarterly ReportRepurchase Offer. The Repurchase Offer shall be made to all Holders. The notice, other than Current Reports describing Asset Sales otherwise described in which shall govern the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest terms of such reports and (C) if materialRepurchase Offer, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1a) that the Company Repurchase Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 or 4.14 hereof, as the provisions case may be, and the length of this Indenturetime the Repurchase Offer shall remain open;
(2b) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3c) that any Notes (Note not tendered or portions thereof) not properly tendered accepted for payment shall continue to accrete or accrue interest;
(4d) that, unless the purchase price and purchase dateCompany defaults in making such payment, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes Note accepted for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes payment pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Repurchase Offer Notice is delivered shall cease to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made accrete or accrue interest and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (orSpecial Interest, if the Company is the Paying Agentany, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note purchased pursuant to a Repurchase Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(f) that Holders electing to have a Note purchased pursuant to any Repurchase Offer shall be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Company, a depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(g) that Holders shall be entitled to withdraw their election if the Trustee Company, the depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his its election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall be purchased). ; and
(i) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Repurchase Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ ' Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.09. A The Company, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Repurchase Offer on the Purchase Date. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Repurchase Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Sections 3.09, 4.10 or 4.14 of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have been accepted for breached its obligations under those Sections by virtue of such conflict. Other than as specifically provided in this Section 3.09, any purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor pursuant to this Section 3.09 shall be made pursuant to the surrendering Holderprovisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (Potlatch Corp)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 1016 hereof, the Company shall be required to commence an offer to all Holders of Notes and, to the extent required by the terms thereof, to all holders or lenders of other PARI PASSU Notes, to purchase Notes and any such PARI PASSU Notes (an "Asset Sale Disposition Offer"), it shall follow the additional procedures specified below.
. The Asset Disposition Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (b) Within 30 days the "Asset Disposition Offer Period"). No later than five Business Days after the 365th day following termination of the Offer Period (the "Asset Disposition Offer Purchase Date"), the Company shall purchase the principal amount of Notes required to be purchased pursuant to Section 1016 hereof, giving effect to any related offer for PARI PASSU Notes pursuant to Section 1016 (the "Asset Disposition Offer Amount") or, if less than the Asset Disposition Offer Amount has been tendered, all Notes tendered in response to the Asset Disposition Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Asset Disposition Offer Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Disposition Offer. Upon the commencement of an Asset SaleDisposition Offer, the Company shallshall send, if it is obligated to make an Asset Sale Offerby first class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Holders. The notice shall contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase tender Notes pursuant to the provisions Asset Disposition Offer. The Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, shall state:
(i) that the Asset Disposition Offer is being made pursuant to this IndentureSection and Section 1016 hereof and the length of time the Asset Disposition Offer shall remain open;
(2ii) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Disposition Offer shall cease to accrue interest on Amount, the purchase price and the Asset Disposition Offer Purchase Date;
(3iii) that any Notes (Note not tendered or portions thereof) not properly tendered accepted for payment shall continue to accrue interest;
(4iv) that, unless the purchase price and purchase dateCompany defaults in making such payment, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes Note accepted for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes payment pursuant to the Asset Sale Offer.Disposition Offer shall cease to accrue interest after the Asset Offer Purchase Date;
(dv) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to an Asset Disposition Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(vi) that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 three Business Days prior to before the Asset Disposition Offer Purchase Date. ;
(vii) that Holders shall be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Asset Disposition Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(viii) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Disposition Offer Amount, the Company shall select the Notes to be purchased on a pro rata PRO RATA basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall be purchased). ) in the manner provided in Section 1016; and
(ix) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). If any of the time Notes subject to an Asset Disposition Offer is in the form of a Global Note, then such notice may be modified in form but not substance to the extent appropriate to accord with the procedures of the Depositary applicable to repurchases. On or before the Asset Disposition Offer Purchase Date, the Company delivers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Disposition Offer Amount of Notes or portions thereof tendered pursuant to the Asset Disposition Offer, or if less than the Asset Disposition Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ ' Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.10Section. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Asset Disposition Offer Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon receipt of a Company Order directing the Trustee to authenticate the new Note, shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Disposition Offer on the Asset Sale Offer Purchase Date. Other than as specifically provided in this Section, any purchase pursuant to this Section shall be made pursuant to the applicable provisions of this Article Eleven.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 5.05, the Company shall be required to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it shall follow the additional procedures specified belowin this Section 4.10. Each Asset Sale Offer shall remain open for not less than ten (10) Business Days nor more than sixty (60) days immediately following its commencement, except to the extent that a longer period is required by Applicable Law (the "Offer Period").
(b) Within 30 days after Upon the 365th day following the date commencement of an Asset Sale, the Company shall, if it is obligated to make an Asset Sale Offer, deliver the Company shall send, by first class mail, a written Asset Sale Offer notice to the Trustee and each of the Holders of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) contain all other instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the . The Asset Sale Offer Notice is delivered shall be made to all Holders. The notice, which shall govern the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount terms of the Asset Sale Offer Offer, shall state:
(i) that the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made pursuant to this Section 4.10 and (3) Section 5.05 and the compliance length of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to time the Asset Sale Offer shall remain open;
(ii) the Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(eiii) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly completed, entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed to the Company or its agent at the address specified in the notice at least 3 three Business Days prior to before the Purchase Date. ;
(iv) that Holders shall be entitled to withdraw their election if the Trustee or the Company receives receives, not later than 1 the second Business Day prior to the Purchase Dateexpiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at ; and (v) other information required to be included pursuant to Section 3.03.
(c) On or before the expiration Business Day immediately after the termination of the Offer Period (the "Purchase Date"), the Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, Notes or portions thereof tendered pursuant to the Asset Sale Offer Period with an aggregate principal amount equal to the aggregate principal amount required to be purchased pursuant to Section 5.05 plus accrued and unpaid interest, if any, thereon to the Purchase Date (the "Offer Amount") or, if the aggregate principal amount of Notes surrendered by Holders exceeds tendered is less than the Asset Sale Offer Amount, the Company shall select purchase all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. The Company shall promptly (but in any case not later than five (5) Business Days after the Purchase Date) mail or deliver by wire transfer to each tendering Holder an amount equal to the purchase price of the Notes to be purchased on a pro rata basis (with tendered by such adjustments as may be deemed appropriate Holder and accepted by the Company so that only Notes for purchase, and the Company shall promptly issue a new Note and deliver it to such Holder, in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in a principal amount equal to the any unpurchased portion of the Notes Note surrendered.
(f) At the time the Company delivers Notes to the Trustee which are to . Any Note not so accepted shall be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be accepted promptly mailed or delivered by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering HolderHolder thereof.
Appears in 1 contract
Sources: Indenture (Cincinnati Bell Inc)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be required to commence an offer to holders of Debentures and Pari Passu Indebtedness (an "Asset Sale Offer") to purchase the maximum principal amount ---------------- (or accreted value, as applicable, of Debentures and Pari Passu Indebtedness that may be purchased out of Excess Proceeds), of Debentures and Pari Passu Indebtedness it shall follow the additional procedures specified below.
. The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (b) Within 30 days the "Offer Period"). No later than five ------------ Business Days after the 365th day following termination of the date of an Asset SaleOffer Period (the "Purchase Date"), ------------- the Company shallshall purchase the principal amount (or accreted value, as applicable) of Debentures and Pari Passu Indebtedness required to be purchased pursuant to Section 4.10 hereof (on a pro rata basis if Debentures and Pari Passu Indebtedness tendered are in excess of the Excess Proceeds) (which maximum principal amount of Debentures shall be the "Offer Amount") or, if it less than the ------------ Offer Amount has been tendered, all Debentures and Pari Passu Indebtedness tendered in response to the Asset Sale Offer. Payment for any Debentures so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is obligated on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to make the Person in whose name a Debenture is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Debentures pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, deliver the Company shall send, by first class mail, a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice shall contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the Notes to make an informed decision with respect tender Debentures pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(which at a minimum a) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer shall include remain open;
(Ab) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the CompanyOffer Amount, the most recent subsequently filed Quarterly Report on Form 10-Q of purchase price and the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).Purchase Date;
(c) The Asset Sale Offer Notice that any Debenture not tendered or accepted for payment shall state, among other things:
(1) that the Company is offering continue to purchase Notes pursuant to the provisions of this Indentureaccrue interest;
(2d) that that, unless the Company defaults in making such payment, any Note (or any portion thereof) Debenture accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on after the Purchase Date;
(3e) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note Debenture purchased pursuant to an Asset Sale Offer may only elect to have all of such Debenture purchased and may not elect to have only a portion of such Debenture purchased;
(f) that Holders electing to have a Debenture purchased pursuant to any Asset Sale Offer shall be required to surrender the NoteDebenture, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" on the reverse of the Debenture completed, or transfer by book-entry transfer, to the Company Company, a depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(g) that Holders shall be entitled to withdraw their election if the Trustee Company, the depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was Debenture the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note Debenture purchased. If at the expiration of the Asset Sale Offer Period ;
(h) that, if the aggregate principal amount (or accreted value, as applicable) of Notes surrendered Debentures and Pari Passu Indebtedness tendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes Debentures to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes Debentures in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall be purchasedpurchased and Pari Passu Indebtedness). ; and
(i) that Holders whose Notes are Debentures were purchased only in part shall be issued new Notes Debentures equal in principal amount to the unpurchased portion of the Notes surrendered.
Debentures surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers Notes shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Debentures or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Debentures, Pari Passu Indebtedness or portions thereof tendered, and shall deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ ' Certificate stating that such Notes are to be Debentures, and Pari Passu Indebtedness or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Debentures tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Debenture, and the Trustee, upon written request from the Company shall authenticate and mail or deliver such new Debenture to such Holder, in a principal amount equal to any unpurchased portion of the Debenture surrendered. Any Debenture not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Exchange Indenture (Crown Castle International Corp)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, that the Company is required to commence an offer to all Holders to purchase Notes pursuant to Section 4.10Section 4.10 hereof (an "Asset Sale Offer"), it shall follow the procedures specified below. The Asset Sale Offer shall be made to all Holders of Notes, and at the Company's option, to all holders of other Indebtedness that is pari passu with, or subordinate in right of payment to, the Notes. The Asset Sale Offer shall remain open for a period of at least 20 Business Days, and not more than 30 Business Days, following its commencement, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than three Business Days after the termination of the Offer Period (the "Purchase Date"), the Company shall be apply all Excess Proceeds (the "Offer Amount") to the purchase of Notes and such other Indebtedness in the manner required to commence by Section 4.10 hereof. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallwill send, if it is obligated by first class mail, a notice to make an each of the Holders, with a copy to the Trustee, containing all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, deliver a written Asset Sale Offer notice to the Trustee and the Holders of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall will state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.08 and Section 4.10 hereof and the provisions length of this Indenturetime the Asset Sale Offer will remain open;
(2) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (Note not tendered or portions thereof) not properly tendered shall accepted for payment will continue to accrue interest;
(4) that, unless the purchase price and purchase dateCompany defaults in making such payment, which shall be, subject any Note accepted for payment pursuant to any contrary requirements of applicable law, no less than 30 days nor more than 60 days the Asset Sale Offer will cease to accrue interest after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" attached to the Note, in the form of Annex B thereto, completed, to the Company Company, a depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 three Business Days prior to before the Purchase Date. ;
(7) that Holders shall will be entitled to withdraw their election if by delivery to the Trustee Company, the depositary or the Company receives Paying Agent, as the case may be, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder ▇▇▇▇▇▇ is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and other Indebtedness (or accreted value, as applicable) surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select Excess Proceeds will be applied in the following way: (a) first, the Excess Proceeds will be applied to purchase the Notes and other pari passu Indebtedness tendered for purchase, on a pro rata basis (if the aggregate principal amount of such Notes and pari passu Indebtedness exceeds the amount of Excess Proceeds), and (b) second, if and to the extent any Excess Proceeds remain after the purchase of all of the Notes and other pari passu Indebtedness tendered for purchase, the remaining Excess Proceeds will be purchased applied to purchase any subordinated Indebtedness tendered for purchase, on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall will be purchased). ; and
(9) that Holders whose Notes are were purchased only in part shall will be issued new Notes in authorized denominations equal in principal amount to the unpurchased portion of the Notes surrendered.
(f) At . On or before the time Purchase Date, the Company delivers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes and other pari passu Indebtedness or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount of Notes and other pari passu Indebtedness has been tendered, all Notes tendered, and shall deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ ' Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.08 and Section 4.10(c) hereof. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note or Notes in authorized denominations, and the Trustee, upon written request from the Company will authenticate and mail or deliver such new Note or Notes to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. The Trustee and the Paying Agent shall return to the Company any cash that remains unclaimed, together with interest, if any, thereon, held by them for the payment of the offer price. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer as soon as reasonably practicable on or after the Purchase Date.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.09 hereof, the Company shall be is required to commence an offer (an "ASSET SALE OFFER") to all Holders to purchase all or any part (equal to $1,000 or any integral multiple of $1,000 in excess of $1,000) of that Holder's Notes, the Company will follow the procedures specified belo▇. The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture (including without limitation, the Convertible Notes) with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the "OFFER PERIOD"). No later than five Business Days after the termination of the Offer Period (the "PURCHASE DATE"), the Company will apply all Excess Proceeds (the "OFFER AMOUNT") to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made pursuant to Section 4.01 hereof. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person, in cash, in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallwill send, if it is obligated to make an Asset Sale Offerby first class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (the “Asset Sale Offer Notice”)Holders, accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect a copy to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) Trustee. The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) notice will contain all other instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than . The notice, which will govern the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount terms of the Asset Sale Offer Offer, will state:
(a) that the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made pursuant to this Section 3.14 and Section 4.10 hereof and the length of time the Asset Sale Offer will remain open;
(3b) the compliance of such allocation with the provisions of Section 4.10(a). On such dateOffer Amount, the Company shall also irrevocably deposit with purchase price and the Trustee Purchase Date;
(c) that any Note not tendered or with the Paying Agent accepted for payment will continue to accrue interest;
(ord) that, if unless the Company is the Paying Agentdefaults in making such payment, shall segregate and hold in trust) in cash an amount equal any Note accepted for payment pursuant to the Asset Sale Offer Amount will cease to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on accrue interest after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note any Notes purchased shall pursuant to an Asset Sale Offer may elect to have such Notes purchased in denominations of $1,000 or integral multiples of $1,000 in excess of $1,000 only;
(f) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Notesuch Notes, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" attached to the Notes completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to the close of business at least three Business Days preceding the Purchase Date. ;
(g) that Holders shall will be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(h) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders thereof (including without limitation, the Convertible Notes) exceeds the Asset Sale Offer Amount, the Company shall will select the Notes and other pari passu Indebtedness (including without limitation, the Convertible Notes) to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall of $1,000 will be purchased). ; and
(i) that Holders whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion (to the extent that such unpurchased portion is equal to $1,000 in principal amount or an integral multiple of $1,000 in excess of $1,000 ) of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof properly tendered and not withdrawn pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes properly tendered and not withdrawn, and will deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ ' Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.14. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each Holder properly tendered, and not withdrawn, an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each new Note will be in a principal amount of $1,000 or integral multiples of $1,000 in excess of $1,000. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on, or as soon as practicable after, the Purchase Date. Other than as specifically provided in this Section 3.14, any purchase pursuant to this Section 3.14 shall be made pursuant to the provisions of Sections 3.02 through 3.07 and Sections 3.11 through 3.13 hereof.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company is required to commence an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it shall follow the procedures specified below. The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company shall apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be required made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, shall be paid to commence the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shall, if it is obligated to make an Asset Sale Offer, shall deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice shall contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) will govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice Offer, shall state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 hereof and the provisions length of this Indenturetime the Asset Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note (not tendered or any portion thereof) accepted for payment shall continue to accrue interest;
(and duly paid on 4) that, unless the Purchase Date) Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Purchase Date;
(35) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in whole multiples of $1,000 only;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a facsimile transmission or letter or transfer by book-entry setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder ▇▇▇▇▇▇ is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders holders thereof exceeds the Asset Sale Offer Amount, the Company shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral whole multiples of $1,000 in excess thereof, shall be purchased). ; and
(9) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof properly tendered and not withdrawn pursuant to the Asset Sale Offer, or if less than the Offer Amount has been properly tendered and not withdrawn, all Notes properly tendered and not withdrawn, and shall deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Officer’s Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails or delivers payment therefor Agent, as the case may be, shall promptly (but in any case not later than five Business Days after the Purchase Date) deliver to each Holder of the Notes properly tendered and not withdrawn an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order from the Company, shall authenticate and deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (Patrick Industries Inc)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.14 hereof, the Company is required to commence an offer to all Holders to purchase Notes of a series (“Asset Sale Offer”), it shall follow the procedures specified below. The Asset Sale Offer shall be made to all Holders of each series of Notes and all holders of other Pari Passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company shall apply a portion of the Excess Proceeds as calculated pursuant to Section 4.14 hereof (the “Offer Amount”) to the purchase of Notes of any series and such other Pari Passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all of such Notes of the applicable series and other Pari Passu Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be required to commence made in the same manner as interest payments are made. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallshall send, if it is obligated to make an Asset Sale Offerby first-class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company applicable Holders. The notice will contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders to tender such series of the Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) will govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall Offer, will state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.14 and Section 4.14 hereof and the provisions length of this Indenturetime the Asset Sale Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that with respect to any series of Notes, any Note (not tendered or any portion thereof) accepted for payment will continue to accrue interest;
(and duly paid on 4) that, unless the Purchase Date) Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on after the Purchase Date;
(35) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase datethat, which shall be, subject with respect to any contrary requirements series of applicable lawNotes, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have such series of Notes purchased in a principal amount of $2,000 (or in integral multiples of $1,000 in excess thereof) only;
(6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Company, the Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall be entitled to withdraw their election if the Trustee Company or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder ▇▇▇▇▇▇ is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of any Notes of such series and other Pari Passu Indebtedness surrendered by Holders exceeds in connection with the Asset Sale Offer exceeds the Offer Amount, the Company shall select the Notes of such series and other Pari Passu Indebtedness to be purchased on a pro rata basis based on the principal amount of the applicable series of Notes and such other Pari Passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only such Notes in denominations of $2,000, 2,000 (or integral multiples of $1,000 in excess thereof), shall will be purchased). ; and
(9) that Holders of any Notes whose Notes are were purchased only in part shall will be issued new Notes of such series equal in principal amount to the unpurchased portion of such Notes surrendered (or transferred by book-entry transfer). On or before the Notes surrendered.
(f) At the time Purchase Date, the Company delivers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of the applicable Notes of such series or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all such Notes of such series tendered, and shall deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.14. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the applicable series of Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note of such series, and the Trustee, upon written request from the Company, shall authenticate and mail or deliver such new Note to such Holder., in a principal amount equal to any unpurchased portion of the Note
Appears in 1 contract
Sources: Indenture (Valeant Pharmaceuticals International, Inc.)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company is required to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it shall follow the procedures specified below. The Asset Sale Offer shall be made to all Holders of Notes, and at the Company's option, to all holders of other Indebtedness that is pari passu with the Notes (including, without limitation, the 2010 Notes). The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than three Business Days after the termination of the Offer Period (the "Purchase Date"), the Company shall apply all Excess Proceeds (the "Offer Amount") to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be required made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, and Special Interest, if any, will be paid to commence the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallwill send, if it is obligated to make an Asset Sale Offerby first class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice will contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) will govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall Offer, will state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 hereof and the provisions length of this Indenturetime the Asset Sale Offer will remain open;
(2) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (Note not tendered or portions thereof) not properly tendered shall accepted for payment will continue to accrue interest;
(4) that, unless the purchase price and purchase dateCompany defaults in making such payment, which shall be, subject any Note accepted for payment pursuant to any contrary requirements of applicable law, no less than 30 days nor more than 60 days the Asset Sale Offer will cease to accrue interest after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" attached to the Note completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall will be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(f) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holder.;
Appears in 1 contract
Sources: Indenture (Fort James Corp)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10, Section 4.10 hereof the Company shall be required to commence an Asset Sale Offer, it shall will follow the additional procedures specified below.
below and in Section 4.10. The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (b) Within 30 days the “Offer Period”). No later than three Business Days after the 365th day following termination of the date of an Asset SaleOffer Period (the “Purchase Date”), the Company shallwill apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and, if it applicable, such Other Pari Passu Obligations (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made. If the Purchase Date is obligated on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid to make the Person in whose name a Note is registered at the close of business on such record date, and no further interest to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, deliver the Company will send, by first-class mail, postage prepaid, a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice will contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) will govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall Offer, will state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 hereof and the provisions length of this Indenturetime the Asset Sale Offer will remain open;
(2) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (Note not tendered or portions thereof) not properly tendered shall accepted for payment will continue to accrue interest;
(4) that, unless the purchase price Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest on and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $2,000 or integral multiples of $1,000 in excess thereof only;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall will be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, an electronic mail, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and Other Pari Passu Obligations surrendered by Holders holders thereof exceeds the Asset Sale Offer Amount, the Company shall will select the Notes and Other Pari Passu Obligations to be purchased on a pro rata basis based on the principal amount of Notes and such Other Pari Passu Obligations surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, 2,000 or integral multiples of $1,000 in excess thereof, shall will be purchased). ; and
(9) that Holders whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.09. A The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holderbreached its obligations under Section 4.10 of this Indenture by virtue of such conflict.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be Issuer is required to commence an Asset Sale offer to all Holders to purchase Notes (a “Net Proceeds Offer”), it shall will follow the additional procedures specified below.
(b) Within . The Net Proceeds Offer shall be made to all Holders and all holders of other Fixed Asset Debt containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Net Proceeds Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 days after the 365th day following the date of an Asset SaleBusiness Days, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice except to the Trustee and the Holders of the Notes extent that a longer period is required by applicable law (the “Asset Sale Offer NoticePeriod”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), accompanied by the Issuer will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such information regarding other Fixed Asset Debt (on a pro rata basis, with such adjustments as may be needed so that only Notes in minimum amounts of $2,000 and integral multiples of $1,000 will be purchased) or, if less than the Company Offer Amount has been tendered, all Notes and its Subsidiaries other Fixed Asset Debt tendered in response to the Net Proceeds Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made. If the Company believes shall Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Special Interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Net Proceeds Offer. Upon the commencement of an Net Proceeds Offer, the Issuer will send a notice thereof to each of the Holders, with a copy to the Trustee. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. The notice, which will govern the terms of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the CompanyNet Proceeds Offer, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall will state, among other things:
(1) that the Company Net Proceeds Offer is offering to purchase Notes being made pursuant to this Section 3.07 and Section 4.10 hereof and the provisions length of this Indenturetime the Net Proceeds Offer will remain open;
(2) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (Note not tendered or portions thereof) not properly tendered shall accepted for payment will continue to accrue interest;
(4) that, unless the purchase price Issuer defaults in making such payment, any Note accepted for payment pursuant to the Net Proceeds Offer will cease to accrue interest on and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall pursuant to an Net Proceeds Offer may elect to have Notes purchased in denominations of $2,000 or integral multiples of $1,000 in excess thereof only;
(6) that Holders electing to have Notes purchased pursuant to any Net Proceeds Offer will be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company Issuer, a Depositary, if appointed by the Issuer, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall will be entitled to withdraw their election if the Trustee Issuer, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and other Fixed Asset Debt surrendered by Holders holders thereof exceeds the Asset Sale Offer Amount, the Company shall Issuer will select the Notes and other Fixed Asset Debt to be purchased on a pro rata basis based on the principal amount of Notes and such other Fixed Asset Debt surrendered (with such adjustments as may be deemed appropriate by the Company Issuer so that only Notes in denominations of $2,000, 2,000 or integral multiples of $1,000 in excess thereof, shall will be purchased). ; and
(9) that Holders whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Net Proceeds Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and Issuer in accordance with the terms of this Section 4.103.07. A Note shall be deemed to have been accepted for purchase at The Issuer, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Issuer for purchase, and the Issuer will promptly issue a new Note, and the Trustee, upon written request from the Issuer, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer will publicly announce the results of the Net Proceeds Offer on the Purchase Date. Other than as specifically provided in this Section 3.07, any purchase pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (AbitibiBowater Inc.)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be Issuer is required to commence an Asset Sale OfferOffer to all Holders to purchase Notes, it shall will follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice to the Trustee and the Holders of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) . The Asset Sale Offer Notice shall statebe made to all Holders and, among if required by the terms of other things:
(1) that the Company is offering Parity Lien Debt, to purchase Notes pursuant to the provisions all holders of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the such other Parity Lien Debt. The Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (or portions thereof) will remain open for a period of at least 20 Business Days following its commencement and not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less more than 30 days nor more Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than 60 days three Business Days after the date termination of the Prepayment Offer Notice is mailed Period (the “Purchase Date”);
, the Issuer will apply all Excess Proceeds (5the “Offer Amount”) to the aggregate purchase of Notes and such other Parity Lien Debt (on a pro rata basis based on the principal amount of Notes and such other Parity Lien Debt surrendered, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Parity Lien Debt tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be purchased;
(6) made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a description Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, the Issuer will send, by first class mail, a notice to the Trustee and each of the procedure which Holders of Notes must follow in order Holders, with a copy to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) Trustee. The notice will contain all other instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than . The notice, which will govern the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount terms of the Asset Sale Offer Offer, will state:
(a) that the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer will remain open;
(3b) the compliance of such allocation with the provisions of Section 4.10(a). On such dateOffer Amount, the Company shall also irrevocably deposit with purchase price and the Trustee Purchase Date;
(c) that any Note not tendered or with accepted for payment will continue to accrue interest;
(d) that, unless the Paying Agent (orIssuer defaults in making such payment, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal any Note accepted for payment pursuant to the Asset Sale Offer Amount will cease to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to accrue interest on and are to be accepted by the Company. The Trustee or the Paying Agent shall, on after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note purchased shall pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $1,000 or an integral multiple of $1.00 in excess thereof;
(f) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company Issuer, a depositary, if appointed by the Issuer, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(g) that Holders shall will be entitled to withdraw their election if the Trustee Issuer, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, electronic image scan, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(h) that, if the aggregate principal amount of Notes surrendered by Holders thereof exceeds the Offer Amount allocated to the purchase of Notes in the Asset Sale Offer AmountOffer, the Company shall Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Global Note shall be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate) based on the principal amount of Notes surrendered (with such adjustments as may be deemed appropriate by the Company Issuer so that only Notes in denominations of $2,0001,000, or an integral multiples multiple of $1,000 1.00 in excess thereof, shall will be purchased). ; and
(i) that Holders whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Notes or portions thereof tendered pursuant to the Asset Sale Offer and required to be purchased pursuant to this Section 3.09 and Section 4.10 hereof, or if Notes in an aggregate principal amount less than the Offer Amount allocated to the purchase of Notes in the Asset Sale Offer have been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and Issuer in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted The Issuer, the depositary for purchase at the time the Trustee Asset Sale Offer or the Paying Agent mails Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Issuer for purchase, and the Issuer will promptly issue a new Note, and the Trustee, upon written request from the Issuer, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer will publicly announce the results of the Asset Sale Offer on the Purchase Date.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company Issuers shall be required to commence a pro rata Asset Sale Offer (as defined in Section 4.10) to all Holders of the Notes and all holders of other Priority Lien Debt containing provisions similar to those set forth in this Section 3.09 and Section 4.10 hereof with respect to offers to purchase or redeem with the Net Cash Proceeds of sales of assets to purchase such Notes and such other Priority Lien Debt, it shall follow the procedures specified below. The Asset Sale Offer shall remain open for a period of at least 30 days following its commencement but no longer than 60 days, except to the extent that a longer period is required by applicable law (the “Offer Period”). Promptly after the termination of the Offer Period (the “Purchase Date”), the Issuers shall purchase the principal amount of Notes and such other Priority Lien Debt required to be purchased pursuant to Section 4.10 hereof (the “Offer Amount”) or, if less than the Offer Amount has been tendered, all Notes and other Priority Lien Debt tendered and not withdrawn in response to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it the Issuers shall follow send, by first class mail (or in the additional procedures specified below.case of Global Notes, in accordance with the Applicable Procedures), a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer shall remain open;
(b) Within 30 days after the 365th day following the date of an Asset SaleOffer Amount, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice to the Trustee purchase price and the Holders of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).Purchase Date;
(c) The Asset Sale Offer Notice that any Note not validly tendered or accepted for payment shall state, among other things:
(1) that the Company is offering continue to purchase Notes pursuant to the provisions of this Indentureaccrue interest;
(2d) that that, unless the Issuers default in making such payment, any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on after the Purchase Date;
(3e) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Issuers, a Depositary, if appointed by the Issuers, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(f) that Holders shall be entitled to withdraw their election if the Trustee Issuers, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, facsimile an electronic transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(g) that, if the aggregate principal amount of Notes and other Priority Lien Debt surrendered by Holders the holders thereof exceeds the Asset Sale Offer Amount, the Company Issuers shall select the Notes and other Priority Lien Debt to be purchased on a pro rata basis based on the principal amount of the Notes and such other Priority Lien Debt surrendered (with such adjustments as may be deemed appropriate by the Company Issuers so that only Notes in minimum denominations of $2,000, 2,000 or integral multiples of $1,000 in excess thereof, shall be purchasedremain outstanding after such purchase). ; and
(h) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On the time Purchase Date, the Company delivers Issuers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or if less than the Offer Amount has been validly tendered and not properly withdrawn, all Notes so tendered and not withdrawn, shall deposit by 11:00 a.m., New York City time, with the Paying Agent or Depositary an amount equal to the purchase price in respect of all Notes or portions thereof accepted for payment, and shall deliver to the Trustee which are to be accepted for purchase, an Officer’s Certificate of the Company shall also deliver an Officers’ Certificate Main Issuer stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and Issuers in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Issuers, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly mail or delivers payment therefor electronically send to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Issuers for purchase, and the Issuers shall promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order, shall authenticate and mail or electronically send (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or electronically sent by the Issuers to the Holder thereof. The Issuers shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Purchase Date. Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (Peabody Energy Corp)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section Section 4.10, the Company shall be Issuer is required to commence an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it shall follow the procedures specified below. The Asset Sale Offer shall be made to all Holders and if the Issuer elects (or is required by the terms of other pari passu indebtedness), all holders of other Indebtedness that is pari passu with the Notes. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than five Business Days after the termination of the Offer Period (the “Purchase Date”), the Issuer shall apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness, if any, (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made pursuant to Section 4.01. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Interest, if any, shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it the Issuer shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Salesend, the Company shallby first class mail, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice shall contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice Offer, shall state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 and the provisions length of this Indenturetime the Asset Sale Offer shall remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note (not tendered or any portion thereof) accepted for payment shall continue to accrue interest;
(and duly paid on 4) that, unless the Purchase Date) Issuer defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on after the Purchase Date;
(35) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in a minimum amount of $2,000 or an integral multiple of $1,000 in excess thereof only;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company Issuer, a Depositary, if appointed by the Issuer, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall be entitled to withdraw their election if the Trustee Issuer, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to on the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders holders thereof exceeds the Asset Sale Offer Amount, the Company Issuer shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company Issuer so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased). ; and
(9) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers Issuer shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Officer’s Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and Issuer in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Issuer, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Issuer for purchase, and the Issuer shall promptly issue a new Note, and the Trustee, upon written request from the Issuer, shall authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer shall publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06.
Appears in 1 contract
Sources: Indenture (Symbion Inc/Tn)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be is required to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it will follow the procedures specified below. The Asset Sale Offer shall be made to all Holders and all holders of other Parity Lien Debt containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than three Business Days after the termination of the Offer Period (the "Purchase Date"), the Company will apply all Excess Proceeds (the "Offer Amount") to the purchase of Notes and such other Parity Lien Debt (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Liquidated Damages, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallwill send, if it is obligated to make an Asset Sale Offerby first class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice will contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) will govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall Offer, will state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 hereof and the provisions length of this Indenturetime the Asset Sale Offer will remain open;
(2) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (Note not tendered or portions thereof) not properly tendered shall accepted for payment will continue to accrue interest;
(4) that, unless the purchase price and purchase dateCompany defaults in making such payment, which shall be, subject any Note accepted for payment pursuant to any contrary requirements of applicable law, no less than 30 days nor more than 60 days the Asset Sale Offer will cease to accrue interest after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" attached to the Notes completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall will be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and other Parity Lien Debt surrendered by Holders holders thereof exceeds the Asset Sale Offer Amount, the Company shall will select the Notes and other Parity Lien Debt to be purchased on a pro rata basis based on the principal amount of Notes and such other Parity Lien Debt surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall will be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(f) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holder.; and
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company is required to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it shall follow the procedures specified below. The Asset Sale Offer shall be made to all Holders of Notes, and at the Company's option, to all holders of other Indebtedness that is pari passu with the Notes (including, without limitation, the 2008 Notes). The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than three Business Days after the termination of the Offer Period (the "Purchase Date"), the Company shall apply all Excess Proceeds (the "Offer Amount") to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be required made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, and Special Interest, if any, will be paid to commence the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallwill send, if it is obligated to make an Asset Sale Offerby first class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice will contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) will govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall Offer, will state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 hereof and the provisions length of this Indenturetime the Asset Sale Offer will remain open;
(2) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (Note not tendered or portions thereof) not properly tendered shall accepted for payment will continue to accrue interest;
(4) that, unless the purchase price and purchase dateCompany defaults in making such payment, which shall be, subject any Note accepted for payment pursuant to any contrary requirements of applicable law, no less than 30 days nor more than 60 days the Asset Sale Offer will cease to accrue interest after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" attached to the Note completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall will be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(f) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holder.;
Appears in 1 contract
Sources: Indenture (Georgia Pacific Corp)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be is required to commence an Asset Sale Offer, as defined below, it shall will follow the additional procedures specified below.
. The “Asset Sale Offer” shall be made to all Holders and, if required by the terms of any Indebtedness that is pari passu with the Notes, to the holders of such other Indebtedness. The Asset Sale Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (b) Within 30 days the “Offer Period”). No later than three Business Days after the 365th day following termination of the date of an Asset SaleOffer Period (the “Purchase Date”), the Company shallwill apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered, if it applicable) or, if less than the Offer Amount has been tendered, all Notes and such other pari passu Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made. If the Purchase Date is obligated on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Special Interest, if any, will be paid to make the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, deliver the Company will send, by first class mail, a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Holders. The notice will contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) will govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall Offer, will state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 hereof and the provisions length of this Indenturetime the Asset Sale Offer will remain open;
(2) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (Note not tendered or portions thereof) not properly tendered shall accepted for payment will continue to accrue interest;
(4) that, unless the purchase price and purchase dateCompany defaults in making such payment, which shall be, subject any Note accepted for payment pursuant to any contrary requirements of applicable law, no less than 30 days nor more than 60 days the Asset Sale Offer will cease to accrue interest after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $200,000 or an integral multiple of $1,000 in excess thereof;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall will be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders holders thereof exceeds the Asset Sale Offer Amount, the Company shall will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000200,000, or an integral multiples multiple of $1,000 in excess thereof, shall will be purchased). ; and
(9) that Holders whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof validly tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, will promptly (but in any case not later than five Business Days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Purchase Date. Other than as specifically provided in this Section 3.09 or Section 4.10 hereof, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.09 hereof, the Company shall be is required to commence an offer (an "ASSET SALE OFFER") to all Holders to purchase all or any part (equal to $1,000 or any integral multiple of $1,000 in excess of $1,000) of that Holder's Notes, the Company will follow the procedures specified bel▇▇. The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture (including without limitation, the Convertible Notes) with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the "OFFER PERIOD"). No later than five Business Days after the termination of the Offer Period (the "PURCHASE DATE"), the Company will apply all Excess Proceeds (the "OFFER AMOUNT") to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made pursuant to Section 4.01 hereof. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person, in cash, in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallwill send, if it is obligated to make an Asset Sale Offerby first class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (the “Asset Sale Offer Notice”)Holders, accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect a copy to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) Trustee. The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) notice will contain all other instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than . The notice, which will govern the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount terms of the Asset Sale Offer Offer, will state:
(a) that the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made pursuant to this Section 3.14 and Section 4.10 hereof and the length of time the Asset Sale Offer will remain open;
(3b) the compliance of such allocation with the provisions of Section 4.10(a). On such dateOffer Amount, the Company shall also irrevocably deposit with purchase price and the Trustee Purchase Date;
(c) that any Note not tendered or with the Paying Agent accepted for payment will continue to accrue interest;
(ord) that, if unless the Company is the Paying Agentdefaults in making such payment, shall segregate and hold in trust) in cash an amount equal any Note accepted for payment pursuant to the Asset Sale Offer Amount will cease to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on accrue interest after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note any Notes purchased shall pursuant to an Asset Sale Offer may elect to have such Notes purchased in denominations of $1,000 or integral multiples of $1,000 in excess of $1,000 only;
(f) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Notesuch Notes, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" attached to the Notes completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to the close of business at least three Business Days preceding the Purchase Date. ;
(g) that Holders shall will be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(h) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders thereof (including without limitation, the Convertible Notes) exceeds the Asset Sale Offer Amount, the Company shall will select the Notes and other pari passu Indebtedness (including without limitation, the Convertible Notes) to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall of $1,000 will be purchased). ; and
(i) that Holders whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion (to the extent that such unpurchased portion is equal to $1,000 in principal amount or an integral multiple of $1,000 in excess of $1,000 ) of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof properly tendered and not withdrawn pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes properly tendered and not withdrawn, and will deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ ' Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.14. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each Holder properly tendered, and not withdrawn, an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each new Note will be in a principal amount of $1,000 or integral multiples of $1,000 in excess of $1,000. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on, or as soon as practicable after, the Purchase Date. Other than as specifically provided in this Section 3.14, any purchase pursuant to this Section 3.14 shall be made pursuant to the provisions of Sections 3.02 through 3.07 and Sections 3.11 through 3.13 hereof.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be Issuer is required to commence an offer to all Holders to purchase the Notes (an “Asset Sale Offer”), it will follow the procedures specified below. The Asset Sale Offer shall be made to all Holders and all holders of Indebtedness of the Issuer or any Guarantor that ranks pari passu with the Notes and contains provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, in accordance with the terms of the documents governing such Indebtedness. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). Promptly after the termination of the Offer Period (the “Offer Purchase Date”), if the aggregate principal amount of the Notes tendered, together with any other pari passu Indebtedness that the Issuer is required to purchase with such Excess Proceeds pursuant to any applicable instrument exceeds all such Excess Proceeds (the “Offer Amount”), the Issuer will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis among such series of Indebtedness based on the amounts tendered or required to be prepaid or redeemed and thereafter the Trustee will select the Notes to be purchased on a pro rata basis (subject to applicable DTC procedures with respect to the Global Notes, including the Applicable Procedures) based on the principal amount tendered (with, in each case, such adjustments as may be deemed appropriate by the Issuer, so that only Notes in minimum denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased, provided that any unpurchased portion of a Note must be in a minimum denomination of $2,000, or an integral multiple of $1,000 in excess thereof). If less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer shall be purchased, provided that such purchase shall not result in any Note having a minimum denomination of less than $2,000 or any other denomination other than an integral multiple of $1,000 in excess thereof, and any Excess Proceeds that remain after consummation of an Asset Sale Offer may be used by the Issuer for any purpose not otherwise prohibited by this Indenture. Payment for any Notes so purchased will be made in the same manner as principal and interest payments are made. If the Offer Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it shall follow the additional Issuer will send, by first class mail (or with respect to Global Notes to the extent permitted or required by applicable DTC procedures specified below.
(b) Within 30 days after or regulations, send electronically), a notice to each of the 365th day following Holders, with a copy to the date Trustee. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of an Asset Sale, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice to the Trustee and the Holders of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall will state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.10 and Section 4.10 hereof and the provisions length of this Indenturetime the Asset Sale Offer will remain open;
(2) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (not tendered or portions thereof) not properly tendered shall accepted for payment will continue to accrue interest;
(4) that, unless the purchase price and purchase dateIssuer defaults in making such payment, which shall be, subject any Notes accepted for payment pursuant to any contrary requirements of applicable law, no less than 30 days nor more than 60 days the Asset Sale Offer will cease to accrue interest after the date the Prepayment Offer Notice is mailed Purchase Date (the “Purchase Date”whether or not a Business Day);
(5) the aggregate principal amount that Holders electing to have Notes purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in minimum denominations of Notes to $2,000 or an integral multiple of $1,000 in excess thereof; provided that any unpurchased portion of a Note must be purchasedin a minimum denomination of $2,000;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note Notes purchased shall pursuant to any Asset Sale Offer will be required to surrender the Notesuch Notes, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer such Notes by book-entry transfer, to the Company Issuer, a Depositary, if appointed by the Issuer, or its agent a Paying Agent at the address specified in the notice at least 3 three Business Days prior to before the Offer Purchase Date. ;
(7) that Holders shall will be entitled to withdraw their election if the Trustee Issuer, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes the Note which was Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his or her election to have such Note Notes purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders thereof exceeds the Asset Sale Offer Amount, the Company shall Issuer will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered or required to be prepaid or redeemed, and thereafter the Trustee will select the Notes to be purchased on a pro rata basis (subject to applicable DTC procedures with respect to Global Notes, including the Applicable Procedures) based on the principal amount tendered (with, in each case, such adjustments as may be deemed appropriate by the Company Issuer so that only Notes in minimum denominations of $2,000, or an integral multiples multiple of $1,000 in excess thereof, shall will be purchased; provided that any unpurchased portion of a Note must be in a minimum denomination of $2,000, or in an integral multiple of $1,000 in excess thereof). ; and
(9) that Holders whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Offer Purchase Date, the Company delivers Issuer will, to the extent lawful, accept for payment (on a pro rata basis to the extent necessary), the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Officer’s Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and Issuer in accordance with the terms of this Section 4.103.10. A Note shall be deemed to have been accepted for purchase at The Issuer, the time the Trustee Depositary or the Paying Agent mails or delivers payment therefor Agent, as the case may be, will promptly remit to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Issuer for purchase, and the Issuer will promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order, together with the documents required under Sections 13.02 and 13.03 hereof, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer will publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Offer Purchase Date. Notwithstanding anything in this Indenture to the contrary, the Issuer’s obligation to make an Asset Sale Offer may be waived or modified or terminated with written consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a tender offer or exchange offer for the Notes) prior to the date by which the Issuer is required to make such Asset Sale Offer.
Appears in 1 contract
Sources: Indenture (VERRA MOBILITY Corp)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be required to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it shall follow the additional procedures specified below.
. The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (b) Within 30 days the "Offer Period"). No later than five Business Days after the 365th day following termination of the date of an Asset SaleOffer Period (the "Purchase Date"), the Company shallshall purchase Accreted Value (if prior to May 15, 2005) or the principal amount (if on or after May 15, 2005) of Notes required to be purchased pursuant to Section 4.10 hereof (the "Offer Amount") or, if it less than the Offer Amount has been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is obligated on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to make the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, deliver the Company shall send, by first class mail, a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (the “Asset Sale Offer Notice”)Holders, accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect a copy to the Asset Sale Offer (which at a minimum Trustee. The notice shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) contain all other instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the . The Asset Sale Offer Notice is delivered shall be made to all Holders. The notice, which shall govern the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount terms of the Asset Sale Offer Offer, shall state:
(a) that the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer shall remain open;
(3b) the compliance of such allocation with the provisions of Section 4.10(a). On such dateOffer Amount, the Company purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall also irrevocably deposit with the Trustee continue to accrete or with the Paying Agent accrue interest;
(ord) that, if unless the Company is the Paying Agentdefaults in making such payment, shall segregate and hold in trust) in cash an amount equal any Note accepted for payment pursuant to the Asset Sale Offer Amount shall cease to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes accrete or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on accrue interest after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(f) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Company, a depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(g) that Holders shall be entitled to withdraw their election if the Trustee Company, the depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(h) that, if the aggregate principal amount (or, if prior to May 15, 2005, Accreted Value) of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall be purchased). Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(f) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section 4.10. A Note shall be deemed to have been accepted for purchase at the time the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holder.; and
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In Subject to compliance with the Subordination Agreement, in the event that, pursuant to Section 4.10Section 8.05 hereof, the Company shall be required to commence an offer to all Series A Noteholders to purchase Series A Notes (an “Asset Sale Offer”), it shall follow the additional procedures specified belowin this Section 7.09. The Company shall comply with the requirements of Rule 14e1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Series A Notes pursuant to an Asset Sale Offer, and the Company shall not be in violation of this Agreement by reason of any act required by such rule or other Applicable Law.
(b) Within 30 days after five (5) Business Days following each date on which the 365th day following the date of an Asset Sale, the Company shall, if it is obligated Company’s obligation to make an Asset Sale OfferOffer is triggered, deliver the Company shall send, by first-class mail, a written notice to each Series A Noteholder stating:
(i) that the Asset Sale Offer notice is being made pursuant to this Section 7.09 and Section 8.05;
(ii) that the Trustee Company shall purchase the principal amount of Series A Notes required to be purchased pursuant to Section 8.05 (the “Offer Amount”), the purchase price per Series A Note and the Holders purchase date, which shall be at least 30 but no more than 45 days from the date on which the Company mails notice of the Notes Asset Sale Offer (the “Asset Sale Offer NoticePayment Date”);
(iii) that any Series A Notes not tendered will continue to accrue interest;
(iv) that, accompanied by such information regarding unless the Company and its Subsidiaries as the Company believes shall enable such Holders defaults in payment of the Notes to make an informed decision with respect to Offer Amount on the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the CompanyPayment Date, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase all Series A Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on after the Purchase Asset Sale Offer Payment Date;
(3v) that Series A Noteholders electing to have any Series A Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes purchased pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the an Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall be required to surrender the NoteSeries A Notes, with an appropriate the form duly entitled “Option of Noteholder to Elect Purchase” on the reverse of the Series A Notes completed, to the Company or its designated agent for such purpose at the address specified in the notice at least 3 Business Days prior to 5:00 p.m. Eastern Time on the Purchase third Business Day preceding the Asset Sale Offer Payment Date. Holders shall ;
(vi) that Series A Noteholders will be entitled to withdraw their election if the Trustee Company or the Company receives its designated agent for such purpose receives, not later than 1 5:00 p.m. Eastern Time on the second Business Day prior to preceding the Purchase Asset Sale Offer Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the HolderSeries A Noteholder, the principal amount of the Note which was Series A Notes delivered for purchase by the Holder purchase, and a statement that such Holder Series A Noteholder is withdrawing his election to have such Note the Series A Notes purchased. If at the expiration of the Asset Sale Offer Period ;
(vii) that, if the aggregate principal amount of Series A Notes surrendered by Holders Series A Noteholders exceeds the Asset Sale Offer Amount, the Company shall select the Series A Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Series A Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall be purchased). Holders ; and
(viii) that Series A Noteholders whose Series A Notes are being purchased only in part shall will be issued new Series A Notes equal in principal amount to the unpurchased portion of the Series A Notes surrendered.
(f) At , which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. On the time the Company delivers Notes to the Trustee which are to be accepted for purchaseAsset Sale Offer Payment Date, the Company shall also shall, to the extent lawful, (i) accept for payment, on a pro rata basis to the extent necessary, all Series A Notes or portions thereof properly tendered pursuant to the Asset Sale Offer up to the principal amount of Series A Notes equal to the Offer Amount, or, if less than the Offer Amount has been tendered, all Series A Notes tendered, (ii) mail to each holder of a Series A Note so tendered the purchase price for such Series A Notes, plus all accrued and unpaid interest to the Asset Sale Offer Payment Date, (iii) execute and mail to each Series A Noteholder a new Series A Note equal in principal amount to any unpurchased portion of the Series A Notes surrendered, if any, and (iv) deliver to the Series A Noteholders an Officers’ Certificate stating that such Series A Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.107.09. The Company shall inform the Series A Note shall be deemed to have been accepted for purchase at Noteholders in writing of the time results of the Trustee Asset Sale Offer on or as soon as practicable after the Paying Agent mails or delivers payment therefor to the surrendering HolderAsset Sale Offer Payment Date.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.12 hereof, the Company shall be required to commence an Asset Sale Offeroffer to all Holders to purchase Notes (an "ASSET SALE OFFER"), it shall follow the additional procedures specified below.
(b) Within 30 days The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the "OFFER PERIOD"). No later than five Business Days after the 365th day following termination of the date of an Asset SaleOffer Period (the "PURCHASE DATE"), the Company shallshall purchase the principal amount of Notes required to be purchased pursuant to Section 4.12 hereof (the "OFFER AMOUNT") or, if it less than the Offer Amount has been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is obligated on or after a Regular Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest shall be paid to make an the Person in whose name a Note is registered at the close of business on such Regular Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of the Asset Sale Offer, deliver the Company shall send, by first class mail, a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice shall contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) Offer. The Asset Sale Offer Notice shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state, among other things:
(1i) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.12 hereof and the provisions length of this Indenturetime the Asset Sale Offer shall remain open;
(2ii) the Offer Amount, the purchase price and the Purchase Date;
(iii) that any Note (not tendered or any portion thereof) accepted for payment shall continue to accrue interest;
(and duly paid on iv) that, unless the Purchase Date) Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on after the Purchase Date;
(3v) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(vi) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Company, a depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(vii) that Holders shall be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period purc▇▇▇▇▇;
(viii) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, 1,000 or integral multiples of $1,000 in excess thereof, thereof shall be purchased). ; and
(ix) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ ' Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly (but in any case not later than five Business Days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Section 3.01 through 3.06 hereof.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be is required to commence an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it will follow the procedures specified below. The Asset Sale Offer shall be made to all Holders and, at the option of the Company (unless otherwise required by the terms thereof), all holders of other Indebtedness that is pari passu with the Notes pursuant to Section 4.10. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, and Liquidated Damages, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallwill send, if it is obligated to make an Asset Sale Offerby first class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Holders. The notice will contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) will govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall Offer, will state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 hereof and the provisions length of this Indenturetime the Asset Sale Offer will remain open;
(2) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (Note not tendered or portions thereof) not properly tendered shall accepted for payment will continue to accrue interest;
(4) that, unless the purchase price and purchase dateCompany defaults in making such payment, which shall be, subject any Note accepted for payment pursuant to any contrary requirements of applicable law, no less than 30 days nor more than 60 days the Asset Sale Offer will cease to accrue interest after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall will be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,0001,000, or integral multiples of $1,000 in excess thereof, shall will be purchased). ; and
(9) that Holders whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes and other pari passu Indebtedness tendered, and will deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (Broder Bros Co)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company shall be is required to commence an offer to all Holders to purchase Notes (an “Asset Sale Offer”), it will follow the procedures specified below. The Asset Sale Offer shall be made to all Holders and all holders of Second Lien Obligations containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other Second Lien Obligations (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it shall follow the additional procedures specified below.
(b) Within 30 days after the 365th day following the date of an Asset Sale, the Company shallwill send, if it is obligated to make an Asset Sale Offerby first class mail, deliver a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Holders. The notice will contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (Offer. The notice, which at a minimum shall include (A) will govern the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) terms of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall Offer, will state, among other things:
(1) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.09 and Section 4.10 hereof and the provisions length of this Indenturetime the Asset Sale Offer will remain open;
(2) that any Note (or any portion thereof) accepted for payment (the Offer Amount, the purchase price and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3) that any Notes (Note not tendered or portions thereof) not properly tendered shall accepted for payment will continue to accrue interest;
(4) that, unless the purchase price and purchase dateCompany defaults in making such payment, which shall be, subject any Note accepted for payment pursuant to any contrary requirements of applicable law, no less than 30 days nor more than 60 days the Asset Sale Offer will cease to accrue interest after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased shall pursuant to an Asset Sale Offer may elect to have Notes purchased in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof only;
(6) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(7) that Holders shall will be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(8) that, if the aggregate principal amount of Notes and other Second Lien Obligations surrendered by Holders holders thereof exceeds the Asset Sale Offer Amount, the Company shall will select the Notes and other Second Lien Obligations to be purchased on a pro rata basis based on the principal amount of Notes and such other Second Lien Obligations surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in minimum denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall will be purchased). ; and
(9) that Holders whose Notes are were purchased only in part shall will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On or before the time Purchase Date, the Company delivers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee which are to be the Notes properly accepted for purchase, the Company shall also deliver together with an Officers’ Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Company, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or delivers payment therefor deliver to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Appears in 1 contract
Sources: Indenture (KCG Holdings, Inc.)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 7.7(f) hereof, the Company shall be required to commence an Asset Sale Offer, it shall follow the additional procedures specified below.
(ba) Within 30 days The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than five Business Days after the 365th day following termination of the date of an Asset SaleOffer Period (the “Purchase Date”), the Company shallshall purchase the aggregate principal amount, plus accrued and unpaid interest, if any (except as provided in Section 3.3(c) hereof), of Notes and other Pari Passu Debt required to be purchased by it pursuant to Section 7.7(f) hereof (on a pro rata basis if Notes and Pari Passu Debt tendered are in excess of the Excess Proceeds) (which maximum amount shall be the “Offer Amount”) or, if less than the Offer Amount has been tendered, all Notes and other Pari Passu Debt tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made.
(b) If the Purchase Date is obligated on or after an Regular Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, shall be paid to make the Person in whose name a Note is registered at the close of business on such Regular Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
(c) Upon the commencement of an Asset Sale Offer, deliver the Company shall send, by first class mail, a written Asset Sale Offer notice to the Trustee and the Holders each of the Notes (Holders, with a copy to the “Asset Sale Offer Notice”), accompanied by such information regarding the Company Trustee. The notice shall contain all instructions and its Subsidiaries as the Company believes shall materials necessary to enable such Holders of the to tender Notes to make an informed decision with respect pursuant to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) Offer. The Asset Sale Offer Notice shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state, among other things:
(1i) that the Company Asset Sale Offer is offering to purchase Notes being made pursuant to this Section 3.3 and Section 7.7(f) hereof and the provisions length of this Indenturetime the Asset Sale Offer shall remain open;
(2ii) that any Note (not tendered or any portion thereof) accepted for payment shall continue to accrue interest;
(and duly paid on iii) that, unless the Purchase Date) Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on after the Purchase Date;
(3iv) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in a minimum denomination of $2,000 only;
(v) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Company, a Depositary, if appointed by the Company, or its agent a Paying Agent, at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(vi) that Holders shall be entitled to withdraw their election if the Trustee Company, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(vii) that, if the aggregate principal amount of Notes and other Pari Passu Debt surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in minimum denominations of $2,000, or integral multiples of $1,000 in excess thereof, 2,000 shall be purchased). ; and
(viii) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrenderedsurrendered (or transferred by book-entry transfer).
(fd) At On or before the time Purchase Date, the Company delivers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes and other Pari Passu Debt, or portions thereof, tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes and other Pari Passu Debt tendered, and shall deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and in accordance with the terms of this Section 4.103.3. A The Company, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and if the Note surrendered was a certificated Note, the Company shall promptly issue a new certificated Note, without service charge, and the Trustee, upon receipt of a Company Order, shall authenticate and mail, or cause to be transferred by book entry, such new certificated Note to such Holder, in a principal amount equal to any unpurchased portion of the certificated Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as reasonably practicable after the Purchase Date.
(e) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have been accepted for purchase at breached its obligations under the time the Trustee or the Paying Agent mails or delivers payment therefor Indenture with respect to the surrendering HolderAsset Sale Offers by virtue of such compliance.
Appears in 1 contract
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company Issuers shall be required to commence a pro rata Asset Sale Offer (as defined in Section 4.10) to all Holders of the Notes and all holders of other Priority Lien Debt containing provisions similar to those set forth in this Section 3.09 and Section 4.10 hereof with respect to offers to purchase or redeem with the Net Cash Proceeds of sales of assets to purchase such Notes and such other Priority Lien Debt, it shall follow the procedures specified below. The Asset Sale Offer shall remain open for a period of at least 30 days following its commencement but no longer than 60 days, except to the extent that a longer period is required by applicable law (the “Offer Period”). Promptly after the termination of the Offer Period (the “Purchase Date”), the Issuers shall purchase the principal amount of Notes and such other Priority Lien Debt required to be purchased pursuant to Section 4.10 hereof (the “Offer Amount”) or, if less than the Offer Amount has been tendered, all Notes and other Priority Lien Debt tendered and not withdrawn in response to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, it the Issuers shall follow send, by first class mail (or in the additional procedures specified below.case of Global Notes, in accordance with the Applicable Procedures), a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer shall remain open;
(b) Within 30 days after the 365th day following the date of an Asset SaleOffer Amount, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice to the Trustee purchase price and the Holders of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).Purchase Date;
(c) The Asset Sale Offer Notice that any Note not validly tendered or accepted for payment shall state, among other things:
(1) that the Company is offering continue to purchase Notes pursuant to the provisions of this Indentureaccrue interest;
(2d) that that, unless the Issuers default in making such payment, any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on after the Purchase Date;
(3e) that any Notes (or portions thereof) not properly tendered shall continue to accrue interest;
(4) the purchase price and purchase date, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company shall deliver to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.
(e) Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Issuers, a Depositary, if appointed by the Issuers, or its agent a Paying Agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(f) that Holders shall be entitled to withdraw their election if the Trustee Issuers, the Depositary or the Company receives Paying Agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, facsimile an electronic transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(g) that, if the aggregate principal amount of Notes and other Priority Lien Debt surrendered by Holders the holders thereof exceeds the Asset Sale Offer Amount, the Company Issuers shall select the Notes and other Priority Lien Debt to be purchased on a pro rata basis based on the principal amount of the Notes and such other Priority Lien Debt surrendered (with such adjustments as may be deemed appropriate by the Company Issuers so that only Notes in minimum denominations of $2,000, 2,000 or integral multiples of $1,000 in excess thereof, shall be purchasedremain outstanding after such purchase). ; and
(h) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On the time Purchase Date, the Company delivers Issuers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or if less than the Offer Amount has been validly tendered and not properly withdrawn, all Notes so tendered and not withdrawn, shall deposit by 11:00 a.m., New York City time, with the Paying Agent or Depositary an amount equal to the purchase price in respect of all Notes or portions thereof accepted for payment, and shall deliver to the Trustee which are to be accepted for purchase, an Officer’s Certificate of the Company shall also deliver an Officers’ Certificate Main Issuer stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and Issuers in accordance with the terms of this Section 4.103.09. A Note shall be deemed to have been accepted for purchase at The Issuers, the time the Trustee Depositary or the Paying Agent mails Agent, as the case may be, shall promptly mail or delivers payment therefor electronically send to each tendering Holder an amount equal to the surrendering purchase price of the Notes tendered by such Holder and accepted by the Issuers for purchase, and the Issuers shall promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order, shall authenticate and mail or electronically send (or cause to be transferred by book entry) such new Note to such Holder., in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or electronically sent by the Issuers to the Holder
Appears in 1 contract
Sources: Transaction Support Agreement (Peabody Energy Corp)
Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10Section 4.10 hereof, the Company Issuers shall be required to commence a pro rata offer (an Asset Sale Offer“Offer to Purchase”) to all Holders of the Notes and all holders of other Parity Lien Obligations containing provisions similar to those set forth in this Section 3.09 and Section 4.10 hereof with respect to offers to purchase or redeem with the Net Cash Proceeds of sales of assets to purchase such Notes and such other Parity Lien Debt, it shall follow the additional procedures specified below.. The Offer to Purchase shall remain open for a period of at least 30 days following its commencement but no longer than 60 days, except to the extent that a longer period is required by applicable law (the “Offer Period”). Promptly after the termination of the Offer Period (the “Purchase Date”), the Issuers shall purchase the principal amount of the Notes and such other Parity Lien Obligations required to be purchased pursuant to Section 4.10 hereof (the “Offer Amount”) or, if less than the Offer Amount has been tendered, all Notes and other Parity Lien Obligations tendered and not withdrawn in response to the Offer to Purchase. Upon the commencement of an Offer to Purchase, the Issuers shall send, by first class mail (or in the case of Global Notes, in accordance with the Applicable Procedures), a notice to each of the Holders of the Notes, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Offer to Purchase. The Offer to Purchase shall be made to all Holders of the Notes. The notice, which shall govern the terms of the Offer to Purchase, shall state:
(a) that the Offer to Purchase is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Offer to Purchase shall remain open;
(b) Within 30 days after the 365th day following the date of an Asset SaleOffer Amount, the Company shall, if it is obligated to make an Asset Sale Offer, deliver a written Asset Sale Offer notice to the Trustee purchase price and the Holders of the Notes (the “Asset Sale Offer Notice”), accompanied by such information regarding the Company and its Subsidiaries as the Company believes shall enable such Holders of the Notes to make an informed decision with respect to the Asset Sale Offer (which at a minimum shall include (A) the most recently filed Annual Report on Form 10-K (including audited consolidated financial statements) of the Company, the most recent subsequently filed Quarterly Report on Form 10-Q of the Company and any Current Report on Form 8-K of the Company filed subsequent to such Quarterly Report, other than Current Reports describing Asset Sales otherwise described in the offering materials, or corresponding successor reports (or, during any time that the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, corresponding reports prepared pursuant to Section 4.03), (B) a description of material developments in the Company’s business subsequent to the date of the latest of such reports and (C) if material, appropriate pro forma financial information).
(c) The Asset Sale Offer Notice shall state, among other things:
(1) that the Company is offering to purchase Notes pursuant to the provisions of this Indenture;
(2) that any Note (or any portion thereof) accepted for payment (and duly paid on the Purchase Date) pursuant to the Asset Sale Offer shall cease to accrue interest on the Purchase Date;
(3c) that any Notes (Note not validly tendered or portions thereof) not properly tendered accepted for payment shall continue to accrue interest;
(4d) that, unless the purchase price and purchase dateIssuers default in making such payment, which shall be, subject to any contrary requirements of applicable law, no less than 30 days nor more than 60 days after the date the Prepayment Offer Notice is mailed (the “Purchase Date”);
(5) the aggregate principal amount of Notes to be purchased;
(6) a description of the procedure which Holders of Notes must follow in order to tender their Notes and the procedures that Holders of Notes must follow in order to withdraw an election to tender their Notes Note accepted for payment; and
(7) all other instructions and materials necessary to enable Holders to tender Notes payment pursuant to the Asset Sale Offer.
(d) Not later than the date upon which the Asset Sale Offer Notice is delivered to the Trustee as provided in clause (c) of this Section 3.08, the Company Purchase shall deliver cease to the Trustee an Officers’ Certificate as to (1) the amount of the Asset Sale Offer (the “Asset Sale Offer Amount”), (2) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of Section 4.10(a). On such date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company is the Paying Agent, shall segregate and hold in trust) in cash an amount equal to the Asset Sale Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Asset Sale Offer remains open (the “Asset Sale Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee or the Paying Agent shall, on accrue interest after the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Asset Sale Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Asset Sale Offer Period for application in accordance with this Section 3.08.;
(e) that Holders electing to have a Note purchased pursuant to any Offer to Purchase shall be required to surrender the Note, with an appropriate the form duly entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company Company, a depositary, if appointed by the Issuers, or its a paying agent at the address specified in the notice at least 3 Business Days prior to three days before the Purchase Date. ;
(f) that Holders shall be entitled to withdraw their election if the Trustee Issuers, the depositary or the Company receives paying agent, as the case may be, receives, not later than 1 Business Day prior to the Purchase Dateexpiration of the Offer Period, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note which was the Holder delivered for purchase by the Holder and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Asset Sale Offer Period ;
(g) that, if the aggregate principal amount of the Notes and other Parity Lien Obligations surrendered by Holders the holders thereof exceeds the Asset Sale Offer Amount, the Company Issuers shall select the Notes and other Parity Lien Obligations to be purchased on a pro rata basis based on the principal amount of the Notes and such other Parity Lien Obligations surrendered (with such adjustments as may be deemed appropriate by the Company Issuers so that only Notes in minimum denominations of $2,000, 2,000 or integral multiples of $1,000 in excess thereof, shall be purchasedremain outstanding after such purchase). ; and
(h) that Holders whose Notes are were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
surrendered (f) At or transferred by book-entry transfer). On the time Purchase Date, the Company delivers Issuers shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of the Notes or portions thereof validly tendered and not properly withdrawn pursuant to the Offer to Purchase, or if less than the Offer Amount has been validly tendered and not properly withdrawn, all Notes so tendered and not withdrawn, shall deposit by 11:00 a.m., New York City time, with the paying agent or depositary an amount equal to the purchase price in respect of all Notes or portions thereof accepted for payment, and shall deliver to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officers’ Officer’s Certificate stating that such Notes are to be or portions thereof were accepted for payment by the Company pursuant to and Issuers in accordance with the terms of this Section 4.103.09. A The Issuers, the depositary or the paying agent, as the case may be, shall promptly mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Issuers for purchase, and the Issuers shall promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order, shall authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be deemed promptly mailed or delivered by the Issuers to have been the Holder thereof. The Issuers shall publicly announce the results of the Offer to Purchase on or as soon as practicable after the Purchase Date. The Issuers shall deliver tendered notes accepted for purchase at the time to the Trustee or the Paying Agent mails or delivers payment therefor to the surrendering Holderfor cancellation with a cancellation order.
Appears in 1 contract
Sources: Indenture (Foresight Energy LP)