Company Notes. (i) Upon Parent’s written notice to the Company, Parent or a Parent Subsidiary may (A) commence and conduct one or more (i) offers to purchase, including a Change of Control Offer (as defined in the Company Indenture), for cash or tender offers or (ii) exchange offers for securities issued by Parent, in each case with respect to any or all of the outstanding aggregate principal amount of the Company Notes identified to the Company by Parent (the “Offers to Purchase”) and/or (B) commence and conduct consent solicitations to obtain from the requisite holders of the Company Notes consent to certain proposed amendments to the Company Indenture (the “Consent Solicitations” and, together with the Offers to Purchase, if any, the “Company Notes Offers and Consent Solicitations”); provided that the closing of any such Offers to Purchase shall not occur, and the amendments in connection with any such Consent Solicitations shall not become operative (although any supplemental indentures entered into in connection with any such Consent Solicitations may become effective upon execution), prior to the Closing; provided, further, that any Company Notes Offers and Consent Solicitations shall be funded using consideration provided by Parent; provided, further, that the consummation of any Company Notes Offer and Consent Solicitation shall not be a condition to the Closing. Any Company Notes Offer and Consent Solicitation shall be made on terms and conditions (including price to be paid and conditionality) as are proposed by Parent, in consultation with the Company, and which are permitted or required by the terms of the Company Indenture and applicable Laws, including applicable SEC rules and regulations. Parent will reasonably consult with the Company regarding the material terms and conditions of any Company Notes Offer and Consent Solicitation, including the timing and commencement thereof and any relevant tender or consent deadlines, including in light of the regular financial reporting schedule of the Company and any requirements of applicable Laws. Parent shall not be permitted to commence any Company Notes Offer and Consent Solicitation until Parent shall have provided the Company with the related offer to purchase, consent solicitation statement, letter of transmittal, if any, or press release, if any, in connection therewith, and each other material document relevant to the transaction that will be distributed by Parent in the applicable Company Notes Offer and Consent Solicitation (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of Parent commencing the applicable Offer to Purchase or Consent Solicitation to allow the Company and its counsel to review and comment on such Debt Offer Documents, and Parent shall give reasonable and good faith consideration to any comments made or input provided by the Company and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, the Company shall execute one or more supplemental indentures to the Company Indenture in accordance with the terms thereof amending the terms and provisions of the Company Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by Parent (each, a “Company Supplemental Indenture”), which such supplemental indenture(s) shall become effective upon the execution thereof but shall not become operative until the Closing, and the Company shall use reasonable best efforts to cause the trustee under the Company Indenture to enter into such supplemental indenture(s). The Company shall, and shall cause each of the Company Subsidiaries to, and shall use reasonable best efforts to cause its and their Representatives to, provide all reasonable and customary cooperation as may be reasonably requested by Parent in writing to assist Parent in connection with any Company Notes Offer and Consent Solicitation, including by providing any documents, instruments or letters reasonably necessary to facilitate any Company Notes Offer and Consent Solicitation (including in connection with the execution of any (x) dealer manager agreement, purchase agreement, exchange agreement or similar document or instrument relating to such Company Notes Offer and Consent Solicitation and (y) Company Supplemental Indenture relating to the Consent Solicitations, with respect to which, in each case, the Company shall deliver customary officers’ certificates and counsel to the Company shall provide customary legal opinions, to the applicable dealer manager (or similar party), underwriters’ representative(s) or initial purchaser(s) and/or the trustee under the Company Indenture, as and to the extent applicable, in each case, solely to the extent such certificates or legal opinions, as applicable, would not conflict with applicable Laws and would be accurate in light of the facts and circumstances at the time delivered). In connection with any Offer to Purchase in the form of an exchange offer, the Company shall comply with the obligations set forth in Section 7.15(a) as if such exchange offer was considered a Financing for purposes of this Agreement. The solicitation agent, information agent, depositary or other agent retained in connection with any Company Notes Offer and Consent Solicitation will be selected by Parent, retained by Parent, and their fees and out-of-pocket expenses will be paid directly by Parent (or any Parent Subsidiary). If, at any time prior to the completion of any such Company Notes Offer and Consent Solicitation, the Company or any Parent Subsidiary, on the one hand, or Parent or any Company Subsidiary, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement prepared by Parent describing such information shall be disseminated to the holders of the Company Notes. (ii) If requested in writing by Parent (but only upon such request), in lieu of or in addition to Parent commencing or closing any Company Note Offer and Consent Solicitation for any Company Notes, the Company shall, and shall cause the Company Subsidiaries to, as applicable, prior to Closing: (i) (A) issue a notice of redemption for any or all of the outstanding aggregate principal amount of the Company Notes pursuant to the redemption provisions of the Company Indenture and the Company Notes, which notice of redemption shall be expressly conditioned on the occurrence of the Closing and (B) take any other actions reasonably requested by Parent (which shall not require any payment by the Company or the Company Subsidiaries, unless prior to any such payment, Parent or a Parent Subsidiary deposits or, causes to be deposited, with the Company or a Company Subsidiary the amount of such prepayment) that are customary or necessary in connection therewith, including the Company providing customary officers’ certificates and causing counsel to the Company to provide customary legal opinions, in each case, to the trustee under the Company Indenture in accordance with the terms thereof, to facilitate the redemption (and, if requested by Parent, the satisfaction and discharge) of the Company Notes at the Effective Time pursuant to the redemption and satisfaction and discharge provisions of the Company Indenture and the Company Notes and the other provisions of the Company Indenture and the Company Notes applicable thereto; provided that no such redemption or satisfaction and discharge shall be effective prior to the Effective Time; provided, further, that, if any such notice of conditional redemption or satisfaction and discharge is delivered to the trustee under the Company Indenture in respect of the Company Notes, Parent shall ensure that at the Effective Time, so long as the applicable conditions of such redemption or satisfaction and discharge are satisfied, the Company shall have all funds necessary in connection with any such redemption or satisfaction and discharge, or (ii) (A) assist Parent in preparing a supplemental indenture required to comply with the requirements of Sections 5.01, 5.02 and 9.01 of the Company Indenture, which Merger Sub shall execute and deliver, or cause to be executed and delivered, at or prior to the Effective Time, and (B) provide all assistance reasonably requested by Parent in connection with obtaining the execution of such instruments by the other parties required to execute such instruments and take any other actions reasonably requested by Parent (which shall not require any payment by the Company or the Company Subsidiaries) that are customary or necessary in connection therewith, including the Company providing customary officers’ certificates and causing counsel to the Company to provide customary legal opinions, in each case, to the trustee under the Company Indenture, to the extent such documents are required thereby. In each case, each Party shall provide the other Parties the opportunity to review and comment on all documents and materials prepared in connection with this Section 7.16(b) in advance of their delivery, without any Party being required to request such documents, and shall cooperate reasonably with respect to the other’s comments (other than to the extent that a Party determines in good faith that such comments would reasonably be expected to violate the terms of the Company Indenture). Notwithstanding the foregoing, neither the Company nor the Company Subsidiaries shall be required to execute and deliver any document or instrument (or cause any document or instrument to be executed or delivered) (i) that would be inaccurate in light of the facts and circumstances at the time delivered, or (ii) not conditioned on or delivered substantially concurrently with the occurrence of the Effective Time.
Appears in 3 contracts
Sources: Merger Agreement (Dick's Sporting Goods, Inc.), Agreement and Plan of Merger (Foot Locker, Inc.), Merger Agreement (Dick's Sporting Goods, Inc.)
Company Notes. Prior to the Effective Date, if requested in writing by the Buyer Parties, the Company shall, and shall cause each of its Subsidiaries and each of their respective Representatives to, reasonably cooperate with the Buyer Parties to, and take such actions as are necessary to, allow or effect, as the case may be, (a) (i) Upon Parent’s written notice to consent solicitations (the Company, Parent or a Parent Subsidiary may “Consent Solicitations”) and/or (A) commence and conduct one or more (iii) offers to purchase, including a Change of Control Offer (as defined in the Company Indenture), for cash or tender offers or (ii) exchange offers for securities issued by Parentin connection with the Company Notes (each a “Debt Offer”), in each case with respect to any (b) the satisfaction and discharge on the Closing Date of all the outstanding aggregate principal amount of Company Notes (the “Discharge”) or (c) the conditional redemption of all of the outstanding aggregate principal amount of the Company Notes identified pursuant to the applicable provisions of the Company by Parent Indenture at the Closing Date (the “Offers to PurchaseRedemption”). The (i) and/or (B) commence and conduct consent solicitations to obtain from the requisite holders Buyer Parties shall be responsible for preparation of the Company Notes consent to certain proposed amendments to necessary documents in connection with the Company Indenture Consent Solicitations with (the “Consent Solicitations” and, together with the Offers to Purchase, if any, the “Company Notes Offers and Consent SolicitationsSolicitation Documents”); provided that , (ii) the closing of any such Offers to Purchase Buyer Parties shall not occur, and the amendments in connection with any such Consent Solicitations shall not become operative (although any supplemental indentures entered into in connection with any such Consent Solicitations may become effective upon execution), prior to the Closing; provided, further, that any Company Notes Offers and Consent Solicitations shall be funded using consideration provided by Parent; provided, further, that the consummation of any Company Notes Offer and Consent Solicitation shall not be a condition to the Closing. Any Company Notes Offer and Consent Solicitation shall be made on terms and conditions (including price to be paid and conditionality) as are proposed by Parent, in consultation with the Company, and which are permitted or required by the terms of the Company Indenture and applicable Laws, including applicable SEC rules and regulations. Parent will reasonably consult with the Company regarding the material terms and conditions of any Company Notes Offer and Consent Solicitation, including the timing and commencement thereof and any relevant tender or consent deadlines, including in light of the regular financial reporting schedule of the Company and any requirements of applicable Laws. Parent shall not be permitted to commence any Company Notes Offer and Consent Solicitation until Parent shall have provided afford the Company with the related offer to purchase, consent solicitation statement, letter of transmittal, if any, or press release, if any, in connection therewith, and each other material document relevant to the transaction that will be distributed by Parent in the applicable Company Notes Offer and Consent Solicitation (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of Parent commencing the applicable Offer to Purchase or Consent Solicitation to allow the Company and its counsel opportunity to review and comment on such Debt Offer Documents, the Consent Solicitation Documents and Parent shall will give reasonable and good faith consideration to any comments made or input provided the comments, if any, raised by the Company and (iii) the Buyer Parties shall be (or shall cause one or more of its legal counselSubsidiaries to be) responsible for the payment of all fees and expenses in connection with such Consent Solicitation. Subject For the avoidance of doubt, the Buyer Parties shall be permitted to identify and engage (or, to the extent reasonably requested by the Buyer Parties, request that the Company or its applicable Subsidiary engage) any solicitation agents and other agents and advisors in connection with the Consent Solicitation. The Consent Solicitations shall be conducted in compliance with the Company Indenture and the applicable global security governing the Company Notes and with applicable laws, including, for the avoidance of doubt, applicable SEC rules and regulations. The Company shall, and shall cause its Subsidiaries and shall use its reasonable best efforts to cause their respective Representatives to, in each case, at the Buyer Parties’ sole expense, provide all cooperation reasonably requested by the Buyer Parties in connection with any Consent Solicitation, including, without limitation, by (to the extent requested by the Buyer Parties) executing and delivering the Consent Solicitation Documents, entering into any solicitation agency and similar agreements related to such Consent Solicitation and participating in the preparation of the Consent Solicitation Documents. Promptly following the expiration of a Consent Solicitation and subject to the receipt of the any requisite holder consents, in connection with any or all of the Consent Solicitations, (i) the Company shall execute one or more supplemental indentures to the Company Indenture governing the Company Notes subject to the applicable Consent Solicitation, in accordance with the terms thereof amending the terms and provisions of the Company Indenture as described and providing for the amendments contemplated in the applicable Debt Offer Consent Solicitation Documents in a form as reasonably requested by Parent and (each, a “Company Supplemental Indenture”), which such supplemental indenture(sii) shall become effective upon the execution thereof but shall not become operative until the Closing, and the Company shall use reasonable best efforts to cause the trustee under the Company Indenture to enter into such supplemental indenture(s)indentures; provided, however, that notwithstanding the fact that such supplemental indentures may become effective earlier, the proposed amendments set forth therein shall not become operative until the Effective Time. The Company shallAny Debt Offer, Redemption and/or Discharge, and shall cause each of the Company Subsidiaries to, and shall use reasonable best efforts to cause its and their Representatives to, provide all reasonable and customary cooperation as may be reasonably requested by Parent in writing to assist Parent in connection with any Company Notes Offer and Consent Solicitation, including by providing any documents, instruments notices or letters reasonably necessary to facilitate any Company Notes Offer and Consent Solicitation (including in connection with the execution of any (x) dealer manager agreement, purchase agreement, exchange agreement or similar document or instrument relating to such Company Notes Offer and Consent Solicitation and (y) Company Supplemental Indenture relating to the Consent Solicitations, instructions with respect to which, in each case, the Company shall deliver customary officers’ certificates and counsel to the Company shall provide customary legal opinions, to the applicable dealer manager (or similar party), underwriters’ representative(s) or initial purchaser(s) and/or the trustee under the Company Indenture, as and to the extent applicable, in each case, solely to the extent such certificates or legal opinions, as applicable, would not conflict with applicable Laws and would thereto must be accurate in light of the facts and circumstances at the time delivered). In connection with any Offer to Purchase in the form of an exchange offer, the Company shall comply with the obligations set forth in Section 7.15(a) as if such exchange offer was considered a Financing for purposes of this Agreement. The solicitation agent, information agent, depositary or other agent retained in connection with any Company Notes Offer and Consent Solicitation will be selected by Parent, retained by Parent, and their fees and out-of-pocket expenses will be paid directly by Parent (or any Parent Subsidiary). If, at any time prior to the completion of any such Company Notes Offer and Consent Solicitation, the Company or any Parent Subsidiary, on the one hand, or Parent or any Company Subsidiary, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement prepared by Parent describing such information shall be disseminated to the holders of the Company Notes.
(ii) If requested in writing by Parent (but only upon such request), in lieu of or in addition to Parent commencing or closing any Company Note Offer and Consent Solicitation for any Company Notes, the Company shall, and shall cause the Company Subsidiaries to, as applicable, prior to Closing: (i) (A) issue a notice of redemption for any or all of the outstanding aggregate principal amount of the Company Notes pursuant to the redemption provisions of the Company Indenture and the Company Notes, which notice of redemption shall be expressly conditioned on the occurrence of the Closing and (B) take any other actions reasonably requested by or shall occur on or after the Closing Date. Parent (which shall not require any payment by the Company ensure that, at or the Company Subsidiaries, unless prior to any such payment, Parent or a Parent Subsidiary deposits or, causes to be deposited, with the Company or a Company Subsidiary the amount of such prepayment) that are customary or necessary in connection therewith, including the Company providing customary officers’ certificates and causing counsel to the Company to provide customary legal opinions, in each case, to the trustee under the Company Indenture in accordance with the terms thereof, to facilitate the redemption (and, if requested by Parent, the satisfaction and discharge) of the Company Notes at the Effective Time pursuant to the redemption and satisfaction and discharge provisions of the Company Indenture and the Company Notes and the other provisions of the Company Indenture and the Company Notes applicable thereto; provided that no such redemption or satisfaction and discharge shall be effective prior to the Effective Time; provided, further, that, if any such notice of conditional redemption or satisfaction and discharge is delivered to the trustee under the Company Indenture in respect of the Company Notes, Parent shall ensure that at the Effective Time, so long as the applicable conditions of such redemption or satisfaction and discharge are satisfiedClosing, the Company Buyer Parties shall have all funds necessary in connection with any such redemption or satisfaction and dischargeConsent Solicitation, or (ii) (A) assist Parent in preparing a supplemental indenture required to comply with Debt Offer, Redemption and/or Discharge. The Parties hereby agree that none of Parent, the requirements of Sections 5.01Company, 5.02 and 9.01 any Subsidiary of the Company Indenture, which Merger Sub or any of the foregoing Person’s respective Representatives shall execute and deliver, be required to pay or cause to be executed and delivered, at or prior to the Effective Time, and (B) provide all assistance reasonably requested by Parent deposit any amounts required in connection with obtaining the execution of such instruments by the other parties required to execute such instruments and take any other actions reasonably requested by Parent (which shall not require any payment by the Company a Consent Solicitation, Debt Offer, Redemption or the Company Subsidiaries) that are customary or necessary in connection therewithDischarge, including the Company providing customary officers’ certificates and causing counsel to the Company to provide customary legal opinions, in each case, to the trustee under the Company Indenture, except to the extent such documents are amounts have been previously provided by the Buyer Parties to such Person expressly for such purpose. If requested by the Buyer Parties, the Company shall use its reasonable best efforts to cause its counsel to provide all customary legal opinions customary or required thereby. In each case, each Party shall provide the other Parties the opportunity to review and comment on all documents and materials prepared in connection with the transactions contemplated by this Section 7.16(b6.5(c) in advance of their delivery, without any Party being required to request such documents, and shall cooperate reasonably with respect to the other’s comments (other than to the extent that a Party determines in good faith that such comments would reasonably be expected to violate the terms of the Company Indenture). Notwithstanding the foregoing, neither the Company nor the Company Subsidiaries shall be legal opinion is customary or required to execute be delivered prior to the Closing Date and shall deliver any document all such officer’s certificates customary or instrument (or cause any document or instrument to be executed or delivered) (i) that would be inaccurate required in light of the facts and circumstances at the time delivered, or (ii) not conditioned on or delivered substantially concurrently connection with the occurrence of the Effective Timesuch transactions.
Appears in 2 contracts
Sources: Merger Agreement (Restaurant Brands International Limited Partnership), Merger Agreement (Carrols Restaurant Group, Inc.)
Company Notes. (i) Upon Parent’s written notice to Between the Companydate hereof and the Closing, Parent or a Parent Subsidiary may (A) commence and conduct one or more (i) offers to purchase, including a Change of Control Offer (as defined in the Company Indenture), for cash or tender offers or (ii) exchange offers for securities issued by Parent, in each case with respect shall commence a contingent Offer to any or Purchase all of the outstanding aggregate principal amount of the Company Series A Notes identified to the Company by Parent (the “Offers to Purchase”) and/or (B) commence and conduct consent solicitations to obtain from the requisite holders of the Company Series B Notes consent to certain proposed amendments to the Company Indenture (the “Consent Solicitations” and, together with the Offers to Purchase, if any, the “Company Notes Offers and Consent Solicitations”); provided that the closing of any such Offers to Purchase shall not occur, and the amendments in connection with any such Consent Solicitations shall not become operative (although any supplemental indentures entered into in connection with any such Consent Solicitations may become effective upon execution), prior to the Closing; provided, further, that any Company Notes Offers and Consent Solicitations shall be funded using consideration provided by Parent; provided, further, that the consummation of any Company Notes Offer and Consent Solicitation shall not be a condition to the Closing. Any Company Notes Offer and Consent Solicitation shall be made on terms and conditions (including price to be paid and conditionality) as are proposed by Parent, in consultation with the Company, and which are permitted or required by the terms of the Company Indenture and applicable Laws, including applicable SEC rules and regulations. Parent will reasonably consult with the Company regarding the material terms and conditions of any Company Notes Offer and Consent Solicitation, including the timing and commencement thereof and any relevant tender or consent deadlines, including in light of the regular financial reporting schedule of the Company and any requirements of applicable Laws. Parent shall not be permitted to commence any Company Notes Offer and Consent Solicitation until Parent shall have provided the Company with the related offer to purchase, consent solicitation statement, letter of transmittal, if any, or press release, if any, in connection therewith, and each other material document relevant to the transaction that will be distributed by Parent in the applicable Company Notes Offer and Consent Solicitation (collectively, the “Debt "Pre-Closing Offers to Purchase") at 101% of the principal amount thereof, plus accrued interest thereon (if any) to the Payment Date (the "Offer Documents”) a reasonable period of time in advance of Parent commencing the applicable Price"). Each Pre-Closing Offer to Purchase or Consent Solicitation to allow the Company and its counsel to review and comment on such Debt Offer Documents, and Parent shall give reasonable and good faith consideration to any comments made or input provided by the Company and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, the Company shall execute one or more supplemental indentures to the Company Indenture in accordance with the terms thereof amending the terms and provisions of the Company Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by Parent (each, a “Company Supplemental Indenture”), which such supplemental indenture(sv) shall become effective state that it is contingent upon the execution thereof but shall not become operative until the Closing, and the Company shall use reasonable best efforts to cause the trustee under the Company Indenture to enter into such supplemental indenture(s). The Company shall, and shall cause each of the Company Subsidiaries to, and shall use reasonable best efforts to cause its and their Representatives to, provide all reasonable and customary cooperation as may be reasonably requested by Parent in writing to assist Parent in connection with any Company Notes Offer and Consent Solicitation, including by providing any documents, instruments or letters reasonably necessary to facilitate any Company Notes Offer and Consent Solicitation (including in connection with the execution of any (x) dealer manager agreement, purchase agreement, exchange agreement or similar document or instrument relating to such Company Notes Offer and Consent Solicitation and (y) Company Supplemental Indenture relating to the Consent Solicitations, with respect to which, in each case, the Company shall deliver customary officers’ certificates and counsel to the Company shall provide customary legal opinions, to the applicable dealer manager (or similar party), underwriters’ representative(s) or initial purchaser(s) and/or the trustee under the Company Indenture, as and to the extent applicable, in each case, solely to the extent such certificates or legal opinions, as applicable, would not conflict with applicable Laws and would be accurate in light of the facts and circumstances at the time delivered). In connection with any Offer to Purchase in the form of an exchange offer, the Company shall comply with the obligations set forth in Section 7.15(a) as if such exchange offer was considered a Financing for purposes of this Agreement. The solicitation agent, information agent, depositary or other agent retained in connection with any Company Notes Offer and Consent Solicitation will be selected by Parent, retained by Parent, and their fees and out-of-pocket expenses will be paid directly by Parent (or any Parent Subsidiary). If, at any time prior to the completion of any such Company Notes Offer and Consent Solicitation, the Company or any Parent Subsidiary, on the one hand, or Parent or any Company Subsidiary, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement prepared by Parent describing such information shall be disseminated to the holders of the Company Notes.
(ii) If requested in writing by Parent (but only upon such request), in lieu of or in addition to Parent commencing or closing any Company Note Offer and Consent Solicitation for any Company Notes, the Company shall, and shall cause the Company Subsidiaries to, as applicable, prior to Closing: (i) (A) issue a notice of redemption for any or all of the outstanding aggregate principal amount of the Company Notes pursuant to the redemption provisions of the Company Indenture and the Company Notes, which notice of redemption shall be expressly conditioned on the occurrence of the Closing and that the Pre-Closing Offer to Purchase shall be of no effect if this Agreement is terminated or the Closing does not occur, (Bw) take any other actions reasonably requested by Parent provide that the "Payment Date" (which shall not require any payment by as used in the Company or Notes) for purposes of each Pre-Closing Offer to Purchase shall be the Company SubsidiariesClosing Date, unless prior (x) seek a waiver of the requirement to any such paymentmake a subsequent Change of Control Offer to Purchase pursuant to Section 4.12 of the Indentures, Parent or a Parent Subsidiary deposits or, causes to be deposited, with the Company or a Company Subsidiary the amount of such prepayment(y) that are customary or necessary in connection therewith, including the Company providing customary officers’ certificates and causing counsel to the Company to provide customary legal opinions, in each caseseek, to the trustee under the Company Indenture in accordance with the terms thereof, to facilitate the redemption (and, if requested by Parentextent necessary, the satisfaction Indenture Amendments and discharge(z) of the Company Notes at the Effective Time be conducted in a manner and pursuant to the redemption and satisfaction and discharge provisions of the Company Indenture documentation to be mutually agreed upon in good faith by both Parent and the Company Notes Company.
(ii) Between the date hereof and the other provisions of the Company Indenture and the Company Notes applicable thereto; provided that no such redemption or satisfaction and discharge shall be effective prior to the Effective Time; provided, further, that, if any such notice of conditional redemption or satisfaction and discharge is delivered to the trustee under the Company Indenture in respect of the Company Notes, Parent shall ensure that at the Effective Time, so long as the applicable conditions of such redemption or satisfaction and discharge are satisfiedClosing, the Company shall have commence separate consent solicitations (the "Consent Solicitations") with respect to each of the Indentures, as described in Schedule 1.6(a) of the Disclosure Letter. The Consent Solicitations shall be conducted in accordance with Schedule 1.6(a) of the Disclosure Letter and, unless otherwise specifically provided for therein, all funds necessary actions to be taken in connection with any such redemption or satisfaction and discharge, or (ii) (A) assist Parent in preparing a supplemental indenture required to comply with the requirements of Sections 5.01, 5.02 and 9.01 of therewith by the Company Indenture, which Merger Sub shall execute be mutually determined by Parent and deliver, or cause to be executed and delivered, at or the Company in the exercise of their respective reasonable judgment.
(iii) Immediately prior to the Effective Time, in accordance with Section 1.2(c)(i), the Company shall (x) pay to the Paying Agent an amount sufficient to pay the Offer Price for all Series A and Series B Notes tendered pursuant to the Pre-Closing Offers to Purchase and (By) provide all assistance reasonably requested by Parent in connection deposit with obtaining the execution indenture trustee for the Series A Notes and the indenture trustee for the Series B Notes the amounts required under Article 8 of such instruments by the other parties required Indentures to execute such instruments and take any other actions reasonably requested by Parent (which shall not require any payment by defease the Company or the Company SubsidiariesNotes (if any) that are customary or necessary in connection therewith, including the Company providing customary officers’ certificates and causing counsel were not tendered pursuant to the Company Pre-Closing Offers to provide customary legal opinions, in each case, to the trustee under the Company Indenture, to the extent such documents are required thereby. In each case, each Party shall provide the other Parties the opportunity to review and comment on all documents and materials prepared in connection with this Section 7.16(b) in advance of their delivery, without any Party being required to request such documents, and shall cooperate reasonably with respect to the other’s comments (other than to the extent that a Party determines in good faith that such comments would reasonably be expected to violate the terms of the Company Indenture). Notwithstanding the foregoing, neither the Company nor the Company Subsidiaries shall be required to execute and deliver any document or instrument (or cause any document or instrument to be executed or delivered) (i) that would be inaccurate in light of the facts and circumstances at the time delivered, or (ii) not conditioned on or delivered substantially concurrently with the occurrence of the Effective TimePurchase.
Appears in 1 contract
Company Notes. Prior to the Closing Date, at the request and expense of Parent, the Company shall as promptly as practicable following receipt of such request or, at a time reasonably requested by Parent, use its reasonable best efforts to (i) Upon Parent’s written notice to the Company, Parent or a Parent Subsidiary may (A) commence and conduct one or more (i) offers to purchasetender offers, including a Change of Control Offer (as defined in the Company Indenture), for cash or tender exchange offers or consent solicitations or change of control offers (iieach, a “Noteholder Action”) exchange offers for securities issued by Parent, in each case with respect to any or all of the outstanding aggregate principal amount of the 5.000% Senior Unsecured Notes due 2029 (the “Company Notes”) prior to the Closing Date, the settlement of which, in each case, will be contingent on the Closing or (ii) redeem or satisfy and discharge any or all of the Company Notes identified (a “Redemption”), as of the Effective Time, in each case, on price terms that are acceptable to Parent (and, in the case of a Redemption, subject to a redemption premium no greater than that specified in the Company Notes or the indenture governing the Company Notes (the “Company Notes Indenture”) and such other customary terms and conditions as are reasonably acceptable to the Company and Parent. To the extent reasonably requested by Parent, the Company shall, in accordance with the applicable redemption and other provisions of the Company Notes and the Company Notes Indenture, (x) take any actions reasonably necessary or appropriate to be taken to issue conditional redemption notices, notices of conditional offers to purchase or exchange the Company Notes or notices of satisfaction and discharge, or consent solicitations which close at or following the Effective Time, or other documents necessary to commence any Noteholder Action for the Company Notes and (y) use reasonable best efforts to take any other actions reasonably requested by Parent to facilitate the redemption and satisfaction and discharge of the Company Notes or to cause the trustee to proceed with such Noteholder Action for the Company Notes, and take any such action as is reasonably necessary (including the “Offers delivery of any required legal opinions by counsel to Purchase”the Company) and/or (B) to cause the trustee or other applicable agent to send the notices of offers to purchase or redemption, consent solicitation statement or other documents necessary to commence and conduct consent solicitations such a transaction, to obtain from the requisite holders of the Company Notes consent to certain proposed amendments to the Company Indenture (the “Consent Solicitations” and, together with the Offers to Purchase, if any, the “Company Notes Offers and Consent Solicitations”); provided that the closing of any such Offers to Purchase shall not occur, and the amendments in connection with any such Consent Solicitations shall not become operative (although any supplemental indentures entered into in connection with any such Consent Solicitations may become effective upon execution), on or prior to the Closing; providedClosing Date, further, that any as applicable. The Company Notes Offers and Consent Solicitations shall be funded using consideration provided by Parent; provided, further, that the consummation of any Company Notes Offer and Consent Solicitation shall not be a condition to the Closing. Any Company Notes Offer and Consent Solicitation shall be made on terms and conditions (including price to be paid and conditionality) as are proposed by Parent, in consultation with the Company, and which are permitted or required by the terms of the Company Indenture and applicable Laws, including applicable SEC rules and regulations. Parent will reasonably consult with the Company regarding the material terms and conditions of any Company Notes Offer and Consent Solicitation, including the timing and commencement thereof and any relevant tender or consent deadlines, including in light of the regular financial reporting schedule of the Company and any requirements of applicable Laws. Parent shall not be permitted to commence any Company Notes Offer and Consent Solicitation Noteholder Action or Redemption until the Parent shall have drafted all necessary and appropriate documentation related to any Noteholder Action or Redemption and provided the Company with the related offer advanced review and reasonable opportunity to purchase, consent solicitation statement, letter of transmittal, if any, or press release, if any, in connection therewith, and each other material document relevant to the transaction that will be distributed by Parent in the applicable Company Notes Offer and Consent Solicitation (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of Parent commencing the applicable Offer to Purchase or Consent Solicitation to allow the Company and its counsel to review comment and comment on such Debt Offer Documents, and Parent shall give make reasonable and good faith consideration to any comments made or input provided by the Company and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, the Company shall execute one or more supplemental indentures to the Company Indenture in accordance with the terms thereof amending the terms and provisions of the Company Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by Parent (each, a “Company Supplemental Indenture”), which such supplemental indenture(s) shall become effective upon the execution thereof but shall not become operative until the Closing, and the Company shall use reasonable best efforts to cause the trustee under the Company Indenture to enter into such supplemental indenture(s). The Company shall, and shall cause each of the Company Subsidiaries to, and shall use reasonable best efforts to cause its and their Representatives to, provide all reasonable and customary cooperation as may be reasonably requested by Parent in writing to assist Parent in connection with any Company Notes Offer and Consent Solicitation, including by providing any documents, instruments or letters reasonably necessary to facilitate any Company Notes Offer and Consent Solicitation (including in connection with the execution of any (x) dealer manager agreement, purchase agreement, exchange agreement or similar document or instrument relating changes to such Company Notes Offer and Consent Solicitation and (y) Company Supplemental Indenture relating to the Consent Solicitations, with respect to which, in each case, the Company shall deliver customary officers’ certificates and counsel to the Company shall provide customary legal opinions, to the applicable dealer manager (or similar party), underwriters’ representative(s) or initial purchaser(s) and/or the trustee under the Company Indenture, as and to the extent applicable, in each case, solely to the extent such certificates or legal opinions, as applicable, would not conflict with applicable Laws and would be accurate in light of the facts and circumstances at the time delivered)documents. In connection with any Offer to Purchase in the form of an exchange offer, the Company shall comply with the obligations set forth in Section 7.15(a) as if such exchange offer was considered a Financing for purposes of this Agreement. The solicitation agent, information agent, depositary or other agent retained in connection with any Company Notes Offer and Consent Solicitation will be selected by Parent, retained by Parent, and their fees and out-of-pocket expenses will be paid directly by Parent (or any Parent Subsidiary). If, If at any time prior to the completion of any such Company Notes Offer and Consent Solicitation, Noteholder Action any information in the Company or any Parent Subsidiaryrelated offer documents should be discovered by the Company, on the one hand, or Parent or any Company SubsidiaryParent, on the other handother, discovers any information that which should be set forth in an amendment or supplement to the Debt Offer Documentssuch documents, so that the Debt Offer Documents offer documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such the party that discovers such information shall use commercially reasonable efforts to promptly notify the other party, and an appropriate amendment or supplement prepared by Parent describing such information shall be disseminated by or on behalf of the Company to the holders of the Company Notes.
(ii) If requested . Notwithstanding anything to the contrary in writing by Parent (but only upon such request)this Section 6.18, any Noteholder Action or Redemption shall be conducted in lieu of or in addition to Parent commencing or closing compliance with any Company Note Offer and Consent Solicitation for any Company Notes, the Company shall, and shall cause the Company Subsidiaries to, as applicable, prior to Closing: (i) (A) issue a notice of redemption for any or all of the outstanding aggregate principal amount applicable provisions of the Company Notes pursuant to the redemption provisions of the Company Indenture and with applicable Law (in all material respects), including SEC rules and regulations, and the Company Notes, which notice of redemption shall be expressly conditioned on the occurrence of the Closing and (B) take any other actions reasonably requested by Parent (which shall not require be required to commence and conduct any payment by the Company Noteholder Action or the Company Subsidiaries, unless prior to any such payment, Parent or a Parent Subsidiary deposits or, causes to be deposited, Redemption that is not in compliance with the Company or a Company Subsidiary the amount of such prepayment) that are customary or necessary in connection therewith, including Notes Indenture and applicable Laws. So long as the Company providing customary officers’ certificates and causing counsel to has received sufficient immediately available funds provided by or at the Company to provide customary legal opinions, in each case, to direction of Parent for the trustee under the Company Indenture in accordance with the terms thereof, to facilitate the redemption (and, if requested by Parent, the satisfaction and discharge) full payment of the Company Notes at the Effective Time pursuant to the redemption and satisfaction and discharge provisions of the Company Indenture and the Company Notes and the other provisions of the Company Indenture and the Company Notes applicable thereto; provided that no such redemption or satisfaction and discharge shall be effective prior to the Effective Time; provided, further, that, if any such notice of conditional redemption or satisfaction and discharge is delivered to the trustee under the Company Indenture in respect of the Company Notes, Parent shall ensure that at the Effective Time, so long as the applicable conditions of such redemption or satisfaction and discharge are satisfiedvalidly tendered, the Company shall have all funds necessary in connection with waive any such redemption or satisfaction and discharge, or (ii) (A) assist Parent in preparing a supplemental indenture required to comply with the requirements of Sections 5.01, 5.02 and 9.01 of the Company Indentureconditions to any Noteholder Action (other than that the Merger shall have been consummated and that there shall be no final order, which Merger Sub shall execute and deliverdecree, judgment, injunction, ruling or cause to other non-appealable action prohibiting consummation of any Noteholder Action) as may be executed and delivered, at or prior to the Effective Time, and (B) provide all assistance reasonably requested by Parent in writing and shall not, without the written consent of Parent, waive any condition to any Noteholder Action or make any changes to any such Noteholder Action other than as agreed between Parent and the Company. Any dealer manager, information agent, depositary or other agent retained in connection with obtaining any Noteholder Action for the execution of such instruments by the other parties required to execute such instruments and take any other actions reasonably requested Company Notes will be selected by Parent (which shall not require any payment by the Company or the Company Subsidiaries) that are customary or necessary in connection therewith, including the Company providing customary officers’ certificates and causing counsel be reasonably acceptable to the Company to provide customary legal opinions, in each case, to and the trustee under the Company Indenture, to the extent fees and out-of-pocket expenses of such documents are required thereby. In each case, each Party shall provide the other Parties the opportunity to review and comment on all documents and materials prepared in connection with this Section 7.16(b) in advance of their delivery, without any Party being required to request such documents, and shall cooperate reasonably with respect to the other’s comments (other than to the extent that a Party determines in good faith that such comments would reasonably agents will be expected to violate the terms of the Company Indenture)paid directly by Parent. Notwithstanding the foregoing, neither the Company nor the Company any of its Subsidiaries shall be required to execute and deliver any document or instrument (or cause any document or instrument to be executed or delivered) (i) give a notice of redemption that would be inaccurate in light of the facts and circumstances at the time delivered, or (ii) is not conditioned on or delivered substantially concurrently with the occurrence of the Effective TimeClosing.
Appears in 1 contract
Company Notes. (ia) Upon Parent’s written notice to the Company, Parent or a Parent Subsidiary may (A) commence and conduct one or more (i) offers to purchase, including a Change of Control Offer (as defined in Unless the Company Indenture)makes an ESG Sale Election in accordance with Section 2.06, for cash or tender offers or (ii) exchange offers for securities issued by Parentthe Company shall use its reasonable best efforts to, in each case with respect to any or all as promptly as reasonably practicable, effect a consent solicitation seeking the consent of the outstanding aggregate principal amount of the Company Notes identified to the Company by Parent (the “Offers to Purchase”) and/or (B) commence and conduct consent solicitations to obtain from the requisite holders of the Company Notes consent to certain proposed amendments or waivers to the Indenture governing the Company Indenture Notes, which would permit the consummation of the Spin-Off prior to the Closing (the “Consent Solicitations” and, together with the Offers to Purchase, if any, the “Company Notes Offers and Consent Solicitations”Consent); provided that the closing of any such Offers to Purchase Company shall not occur, and the amendments agree to a consent fee in connection with any the Consent without the prior written consent of Parent, such Consent Solicitations shall consent not become operative (although any supplemental indentures entered into in connection with any such Consent Solicitations may become effective upon execution), prior to the Closing; provided, further, that any Company Notes Offers and Consent Solicitations shall be funded using consideration provided by Parent; provided, further, that the consummation of any Company Notes Offer and Consent Solicitation shall not be a condition to the Closing. Any Company Notes Offer and Consent Solicitation shall be made on terms and conditions (including price to be paid and conditionality) as are proposed by Parentunreasonably withheld, in consultation with the Company, and which are permitted conditioned or required by the terms of the Company Indenture and applicable Laws, including applicable SEC rules and regulations. Parent will reasonably consult with the Company regarding the material terms and conditions of any Company Notes Offer and Consent Solicitation, including the timing and commencement thereof and any relevant tender or consent deadlines, including in light of the regular financial reporting schedule of the Company and any requirements of applicable Laws. Parent shall not be permitted to commence any Company Notes Offer and Consent Solicitation until Parent shall have provided the Company with the related offer to purchase, consent solicitation statement, letter of transmittal, if any, or press release, if any, in connection therewith, and each other material document relevant to the transaction that will be distributed by Parent in the applicable Company Notes Offer and Consent Solicitation (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of Parent commencing the applicable Offer to Purchase or Consent Solicitation to allow the Company and its counsel to review and comment on such Debt Offer Documents, and Parent shall give reasonable and good faith consideration to any comments made or input provided by the Company and its legal counsel. Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, the Company shall execute one or more supplemental indentures to the Company Indenture in accordance with the terms thereof amending the terms and provisions of the Company Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by Parent (each, a “Company Supplemental Indenture”), which such supplemental indenture(s) shall become effective upon the execution thereof but shall not become operative until the Closing, and the Company shall use reasonable best efforts to cause the trustee under the Company Indenture to enter into such supplemental indenture(s)delayed. The Company shall, and shall cause each of the Company Subsidiaries to, and shall use reasonable best efforts to cause its and their Representatives to, provide all (A) keep Parent informed on a reasonably prompt basis and in reasonable and customary cooperation as may be reasonably requested by Parent in writing to assist Parent in connection with any Company Notes Offer and Consent Solicitation, including by providing any documents, instruments or letters reasonably necessary to facilitate any Company Notes Offer and Consent Solicitation (including detail of material developments in connection with the execution Consent, (B) allow Parent and its Representatives to review and comment on the terms and conditions and form of the Consent, (C) give Parent prompt notice of any (x) dealer manager agreementmaterial and substantive communications to or from the holders of the Company Notes, purchase agreement, exchange agreement or similar document or instrument relating to such Company Notes Offer and Consent Solicitation and (yD) Company Supplemental Indenture relating promptly respond to Parent’s requests for updates on the Consent Solicitations, status of the Consent. With respect to any actions taken with respect to which, in each case, the Company shall deliver customary officers’ certificates and counsel to the Company shall provide customary legal opinions, to the applicable dealer manager (or similar party), underwriters’ representative(s) or initial purchaser(s) and/or the trustee under the Company Indenture, as and to the extent applicable, in each case, solely to the extent such certificates or legal opinions, as applicable, would not conflict with applicable Laws and would be accurate in light of the facts and circumstances at the time delivered). In connection with any Offer to Purchase in the form of an exchange offerSpin-Off, the Company shall comply with and shall not breach or otherwise violate any of its covenants or obligations pursuant to the obligations Indenture or the Company Notes. Notwithstanding anything to the contrary in this Agreement, the Company shall not consummate the Spin-Off prior to obtaining the Consent and the Bank Consent if the Spin-Off occurs other than substantially concurrently with the Closing, and the Company shall not be obligated to consummate the Spin-Off prior to obtaining the Consent and the Bank Consent unless the Spin-Off occurs substantially concurrently with the Closing and Parent provides a sufficient amount of cash on the Closing Date in order to enable the Company to satisfy and discharge the Company Notes and to pay the Payoff Amount with respect to the Existing Credit Agreement. Parent’s right to terminate this Agreement pursuant to Section 8.01(d)(iv) shall not be available from the ESG Termination Date to the Termination Date (on which date such right to terminate shall once again be available) if either the Consent or Bank Consent have not been obtained by the ESG Termination Date due only to Parent’s failure to provide its consent to the consent fee referenced in the proviso to the first sentence of this Section 6.14(a). Except as set forth in this Section 7.15(a) as if such exchange offer was considered a Financing for purposes of this Agreement. The solicitation agent, information agent, depositary or other agent retained in connection with any Company Notes Offer and Consent Solicitation will be selected by Parent, retained by Parent, and their fees and out-of-pocket expenses will be paid directly by Parent (or any Parent Subsidiary). If, at any time prior to the completion of any such Company Notes Offer and Consent Solicitation6.14, the Company may not otherwise amend, modify or waive any Parent Subsidiary, on provisions of the one hand, Indenture or Parent or any the Company Subsidiary, on the other hand, discovers any information that should be set forth Notes in an amendment or supplement a manner adverse to the Debt Offer DocumentsCompany or its Subsidiaries.
(b) Whether or not the Consent is obtained, so with respect to the Company Notes, (i) on a date that is within ten (10) Business Days of receiving written notice from Parent instructing the Debt Offer Documents shall not contain any untrue statement of a material fact Company to issue or omit to state any material fact required cause to be stated therein or necessary in order to make issued the statements thereinConditional Redemption Notice, in light the Company shall issue a conditional notice of circumstances under which they are made, not misleading, such party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement prepared by Parent describing such information shall be disseminated to the holders redemption of the Company Notes.
(ii) If requested Notes in writing by accordance with the Indenture and in a form reasonably acceptable to the Company and Parent (but only upon such request), in lieu of or in addition to Parent commencing or closing any Company Note Offer and Consent Solicitation for any Company Notesnotice, the Company shall, and shall cause the Company Subsidiaries to, as applicable, prior to Closing: (iConditional Redemption Notice) (A) issue a notice of redemption for any or all of the outstanding aggregate principal amount of the Company Notes pursuant to the redemption provisions Indenture, (ii) Parent shall, upon the Closing, be responsible for the payment of the Company Indenture and Redemption Amount, (iii) the Company Notes, which notice shall (A) deliver to the Indenture Trustee such “Officer’s Certificates,” “Opinions of redemption shall be expressly conditioned on Counsel,” and other documents and certificates in form and substance reasonably satisfactory to the occurrence of the Closing Indenture Trustee and Parent and (B) take any such other reasonable actions reasonably requested by Parent (which shall not require any payment by the Company or the Company Subsidiaries, unless prior to any such payment, Parent or a Parent Subsidiary deposits or, causes to be deposited, with the Company or a Company Subsidiary the amount of such prepayment) that are necessary or customary or necessary in connection therewith, including the Company providing customary officers’ certificates and causing counsel to the Company to provide customary legal opinionsto, in each case, to the trustee under the Company Indenture in accordance with the terms thereof, to facilitate the redemption (and, if requested by Parent, effect the satisfaction and discharge) discharge of the Indenture and the redemption of the Company Notes at on the Effective Time Redemption Date pursuant to the redemption and satisfaction and discharge applicable provisions of the Company Indenture and the Company Notes and the other provisions of the Company Indenture and the Company Notes applicable thereto; provided that no such redemption or satisfaction and discharge shall be effective prior to the Effective Time; providedIndenture, further, that, if any such notice of conditional redemption or satisfaction and discharge is delivered to the trustee under the Company Indenture in respect of the Company Notes, Parent shall ensure that at the Effective Time, so long as the applicable conditions of such redemption or satisfaction and discharge are satisfied, (iv) the Company shall have all funds necessary in connection provide Parent with any such redemption or satisfaction and discharge, or (ii) (A) assist Parent in preparing a supplemental indenture required to comply with the requirements of Sections 5.01, 5.02 and 9.01 of the Company Indenture, which Merger Sub shall execute and deliver, or cause to be executed and delivered, at or prior to the Effective Time, and (B) provide all assistance reasonably requested by Parent in connection with obtaining the execution of such instruments by the other parties required to execute such instruments and take any other actions reasonably requested by Parent (which shall not require any payment by the Company or the Company Subsidiaries) that are customary or necessary in connection therewith, including the Company providing customary officers’ certificates and causing counsel to the Company to provide customary legal opinions, in each case, to the trustee under the Company Indenture, to the extent such documents are required thereby. In each case, each Party shall provide the other Parties the reasonable opportunity to review and comment on all drafts of the documents and materials prepared to be delivered in connection with this Section 7.16(b) in advance the satisfaction and discharge of their delivery, without any Party being required to request such documents, the Indenture and shall cooperate reasonably with respect to the other’s comments (other than to the extent that a Party determines in good faith that such comments would reasonably be expected to violate the terms redemption of the Company Indenture). Notwithstanding the foregoingNotes, neither and (v) the Company nor shall satisfy and discharge the Indenture in accordance with the Indenture and redeem the Company Subsidiaries shall be required to execute and deliver any document or instrument (or cause any document or instrument to be executed or delivered) (i) that would be inaccurate Notes in light of the facts and circumstances at the time delivered, or (ii) not conditioned on or delivered substantially concurrently accordance with the occurrence Indenture on the Redemption Date; provided, that prior to the Closing Date, within six (6) Business Days of receiving written notice from Parent instructing the Effective TimeCompany to delay the Redemption Date to a subsequent redemption date, the Company shall amend the Conditional Redemption Notice setting forth such new subsequent redemption date.
Appears in 1 contract
Company Notes. (ia) Upon Parent’s written notice No later than thirty (30) calendar days prior to the Company, Parent or a Parent Subsidiary may (A) commence and conduct one or more (i) offers to purchase, including a Change date of Control Offer (as defined in the Company Indenture)Meeting, for cash or the Company shall cause ▇▇▇▇▇▇▇ Global Holdings, Inc. (“Holdings”) to launch tender offers or and Consent Solicitations (iithe “Debt Tender Offers”) exchange offers for securities issued by Parent, in each case with respect to any or all of the outstanding aggregate principal amount Senior Floating Rate Notes due 2012 of the Company Notes identified to the Company by Parent Holdings (the “Offers to PurchaseFloating Notes”) and/or (B) commence and conduct consent solicitations to obtain from the requisite holders all of the Company outstanding 7 7/8% Senior Subordinated Notes consent to certain proposed amendments to the Company Indenture due 2012 of Holdings (the “Consent SolicitationsFixed Notes” and, together with the Offers to Purchase, if anyFloating Notes, the “Company Notes Offers and Consent SolicitationsTender Offer Notes”); provided that the closing of any such Offers to Purchase shall not occur, and the amendments in connection with any such Consent Solicitations shall not become operative (although any supplemental indentures entered into in connection with any such Consent Solicitations may become effective upon execution), prior to the Closing; provided, further, that any Company Notes Offers and Consent Solicitations shall be funded using consideration provided by Parent; provided, further, that the consummation of any Company Notes Offer and Consent Solicitation shall not be a condition to the Closing. Any Company Notes Offer and Consent Solicitation shall be made on terms and conditions (including price to be paid and conditionality) as are proposed by Parent, in consultation with the Company, and which are permitted or required by the terms set forth on Section 5.12 of the Company Indenture Disclosure Letter, and otherwise in compliance with applicable Laws, including applicable Law and SEC rules and regulations. , and Parent will reasonably consult and Merger Sub shall assist the Company and Holdings in connection therewith.
(b) Promptly after the date of this Agreement, Parent shall prepare all necessary and appropriate documentation in connection with the Company regarding the material terms and conditions of any Company Notes Offer and Consent SolicitationDebt Tender Offers, including the timing and commencement thereof and any relevant tender or consent deadlines, including in light of the regular financial reporting schedule of the Company and any requirements of applicable Laws. Parent shall not be permitted to commence any Company Notes Offer and Consent Solicitation until Parent shall have provided the Company with the related offer to purchase, consent solicitation statement, letter any related letters of transmittal, if any, or press release, if any, in connection therewith, transmittal and each other material document relevant to the transaction that will be distributed by Parent in the applicable Company Notes Offer and Consent Solicitation related documents (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of Parent commencing the applicable Offer to Purchase or Consent Solicitation to allow the Company and its counsel to review and comment on such Debt Offer Documents, and Parent documents shall give reasonable and good faith consideration to any comments made or input provided by the Company and its legal counsel. Subject be reasonably acceptable to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, the Company shall execute one or more supplemental indentures to the Company Indenture in accordance with the terms thereof amending the terms and provisions of the Company Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by Company. Parent (each, a “Company Supplemental Indenture”), which such supplemental indenture(s) shall become effective upon the execution thereof but shall not become operative until the Closing, and the Company shall use reasonable best efforts cooperate with each other in the preparation of the Offer Documents. All mailings to cause the trustee under holders of the Company Indenture Tender Offer Notes in connection with the Debt Tender Offers shall be subject to enter into such supplemental indenture(s). The Company shall, the prior review and shall cause comment by each of the Company Subsidiaries toand Parent, subject to the terms and conditions of Section 5.12, and shall use reasonable best efforts be reasonably acceptable to each of them. The closing of the Debt Tender Offers shall be conditioned on the conditions set forth in Section 5.12(d). The Company, Parent and Merger Sub shall cooperate in connection with the Debt Tender Offers in order to cause its the consent date under the Consent Solicitation to occur as directed by Parent prior to or concurrently with the Closing and their Representatives tothe initial settlement of the Debt Tender Offers to occur concurrently with the Closing. The Company shall cause Holdings to waive any of the conditions to the Debt Tender Offers (other than that the Merger shall have occurred or that the Parent and Company shall be satisfied that it shall occur substantially concurrently with the closing of the Debt Tender Offers, provide all reasonable the Requested Consents shall have been received, and customary cooperation that there shall be no order or injunction prohibiting consummation of the Debt Tender Offers) as may be reasonably requested by Parent in writing and so long as such waivers would not cause the Debt Tender Offers to assist Parent in connection with violate the Exchange Act, the Trust Indenture Act, or any Company Notes Offer other Law and Consent Solicitationshall not, including by providing without the consent of Parent, waive any documents, instruments or letters reasonably necessary to facilitate any Company Notes Offer and Consent Solicitation (including in connection with the execution of any (x) dealer manager agreement, purchase agreement, exchange agreement or similar document or instrument relating to such Company Notes Offer and Consent Solicitation and (y) Company Supplemental Indenture relating condition to the Consent Solicitations, with respect Debt Tender Offers or make any changes to which, in each casethe terms and conditions of the Debt Tender Offers other than as agreed between Parent and the Company. Notwithstanding the immediately preceding sentence, the Company shall deliver customary officers’ certificates and counsel need not make any change to the Company shall provide customary legal opinions, terms and conditions of the Debt Tender Offers requested by Parent that decreases the price per Note payable in the Debt Tender Offers or imposes conditions to the applicable dealer manager (or similar party), underwriters’ representative(s) or initial purchaser(s) and/or the trustee under the Company Indenture, as and Debt Tender Offers in addition to the extent applicable, in each case, solely to the extent such certificates or legal opinions, as applicable, would not conflict with applicable Laws and would be accurate in light of the facts and circumstances at the time delivered). In connection with any Offer to Purchase in the form of an exchange offer, the Company shall comply with the obligations those set forth in Section 7.15(a) as if 5.12 of the Company Disclosure Letters that are materially adverse to holders of the Tender Offer Notes, unless such exchange offer was considered a Financing for purposes of this Agreement. The solicitation agent, information agent, depositary or other agent retained change is approved in connection with any advance by the Company Notes Offer and Consent Solicitation will be selected by Parent, retained by Parent, and their fees and out-of-pocket expenses will be paid directly by Parent (or any Parent Subsidiary)in writing. If, at any time prior to the completion of the Debt Tender Offers, any such Company Notes information in the Offer and Consent Solicitation, Documents should be discovered by the Company or any Parent Subsidiary, on the one hand, or Parent or any Company Subsidiary, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, such the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement prepared by Parent describing such information shall be disseminated by Holdings to the holders of the Tender Offer Notes. Notwithstanding anything to the contrary in this Section 5.12, Holdings shall comply with the requirements of Rule 14e–l under the Exchange Act and any other applicable Law to the extent such Laws are applicable in connection with the Debt Tender Offers. To the extent that the provisions of any applicable Law conflict with this Section 5.12, the Company Notesshall comply with the applicable Law and shall not be deemed to have breached its obligations hereunder by such compliance.
(iic) If requested in writing by Parent (but only Promptly upon such request), in lieu the receipt of the Requested Consents with respect to the Indenture for the Floating Notes or in addition to Parent commencing or closing any Company Note Offer and Consent Solicitation the Indenture for any Company the Fixed Notes, the Company shall, and shall cause Holdings to enter into a supplemental indenture or supplemental indentures reflecting the amendments to such indentures approved by such Requested Consent and the Company Subsidiaries toshall cause Holdings to use its reasonable best efforts to cause the relevant indenture trustee to promptly enter into such supplemental indenture or supplemental indentures; provided, as applicable, prior that the amendments contained in such supplemental indentures shall become operative upon the acceptance of the applicable Debt Tender Offers and payment for the Tender Offer Notes tendered pursuant thereto.
(d) The closing of any Debt Tender Offer and the obligation of the Company to Closing: accept for payment and pay for the Tendered Notes shall be conditioned on (i) (A) issue a notice of redemption for any or all of the outstanding aggregate principal amount of the Company Notes pursuant to the redemption provisions of the Company Indenture and the Company Notes, which notice of redemption shall be expressly conditioned on the occurrence of the Closing, (ii) the obtaining of the Debt Financing, (iii) the receipt of the Requested Consents, (iv) there being no order or injunction prohibiting consummation of the Debt Tender Offer and (v) such other conditions as are customary for transactions similar to the Debt Tender Offers; provided, that, the consummation of the Debt Tender Offers will not be a condition to the Closing. The parties shall use their reasonable best efforts to cause the Debt Tender Offers to close on the Closing Date. Upon the closing of the Debt Tender Offers, at Closing and (B) take any other actions reasonably requested by Parent (which shall not require any payment by the Company or the Company Subsidiaries, unless prior to any such payment, Parent or a Parent Subsidiary deposits or, causes to be deposited, with the Company or a Company Subsidiary the amount of such prepayment) that are customary or necessary in connection therewith, including the Company providing customary officers’ certificates and causing counsel to the Company to provide customary legal opinions, in each case, to the trustee under the Company Indenture in accordance with the terms thereof, to facilitate the redemption (and, if requested by Parent, the satisfaction and discharge) of the Company Notes at the Effective Time pursuant Debt Tender Offers, subject to Parent providing or causing to be made available to the redemption Company the funds necessary to consummate the Debt Tender Offers and satisfaction and discharge provisions of pay the Company Indenture and the Company Notes and the other provisions of the Company Indenture and the Company Notes applicable thereto; provided that no such redemption or satisfaction and discharge shall be effective prior to the Effective Time; provided, further, that, if any such notice of conditional redemption or satisfaction and discharge is delivered to the trustee under the Company Indenture in respect of the Company Notes, Parent shall ensure that at the Effective Time, so long as the applicable conditions of such redemption or satisfaction and discharge are satisfiedTender Amount, the Company shall have cause Holdings to accept for purchase and purchase the Tender Offer Notes tendered in the Debt Tender Offer (the “Tendered Notes”) and purchase all funds necessary of the Tendered Notes, including payment of any applicable premiums, and all related fees and expenses (the “Tender Amount”). For purposes of the Agreement, “Consent Solicitation” shall mean a solicitation of the Requested Consents from the holders of the applicable Tender Offer Notes; and “Requested Consents” shall mean the consents of holders of a majority in connection with any outstanding principal amount of the holders of the Fixed Notes or the Floating Notes, as the case may be, to the amendments to such redemption or satisfaction and discharge, or (ii) (A) assist Parent Tender Offer Notes described in preparing a supplemental indenture required to comply with the requirements of Sections 5.01, 5.02 and 9.01 Section 5.12 of the Company IndentureDisclosure Letter or in the applicable Consent Solicitation materials, which Merger Sub shall execute and deliver, or cause to be executed and delivered, at or prior to as the Effective Time, and (B) provide all assistance reasonably requested by Parent in connection with obtaining the execution of such instruments by the other parties required to execute such instruments and take any other actions reasonably requested by Parent (which shall not require any payment by the Company or the Company Subsidiaries) that are customary or necessary in connection therewith, including the Company providing customary officers’ certificates and causing counsel to the Company to provide customary legal opinions, in each case, to the trustee under the Company Indenture, to the extent such documents are required thereby. In each case, each Party shall provide the other Parties the opportunity to review and comment on all documents and materials prepared in connection with this Section 7.16(b) in advance of their delivery, without any Party being required to request such documents, and shall cooperate reasonably with respect to the other’s comments (other than to the extent that a Party determines in good faith that such comments would reasonably be expected to violate the terms of the Company Indenture). Notwithstanding the foregoing, neither the Company nor the Company Subsidiaries shall be required to execute and deliver any document or instrument (or cause any document or instrument to be executed or delivered) (i) that would be inaccurate in light of the facts and circumstances at the time delivered, or (ii) not conditioned on or delivered substantially concurrently with the occurrence of the Effective Timecase may be.
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Company Notes. (a) In coordination with Parent, the Company shall (i) Upon comply with the Specified Tender Offer Actions and (ii) either following a Debt Tender Offer in accordance with the Specified Tender Offer Actions or in lieu of such Specified Tender Offer Actions, as directed by Parent’s written notice to , the Company or the applicable Company Subsidiary, in accordance with that certain Indenture, dated as of April 15, 2015, as supplemented by that First Supplemental Indenture dated April 16, 2015, that Second Supplemental Indenture dated November 20, 2015, and that Third Supplemental Indenture dated February 5, 2016 (collectively, the “Indenture”), by and among the Company, Parent or a Parent Subsidiary may the guarantors provided therein, and U.S. Bank, National Association, as trustee (A) commence and conduct one or more the “Trustee”), shall:
(i) offers send a notice of redemption to purchasethe Trustee (conditioned upon the consummation of the Closing, including a Change of Control Offer (as defined in if sent prior to the Closing), with respect to the Company Indenture), for cash or tender offers or Notes;
(ii) exchange offers take such actions as may be required under the Indenture to cause the Trustee to proceed with the redemption of such Company Notes and to provide the notice of redemption (conditioned upon consummation of the Closing, if provided prior to the Closing) to the holders of such Company Notes pursuant to the Indenture; and
(iii) take all other actions and prepare and deliver all other documents required under the Indenture (including any officers certificates and legal opinions) as may be required under the Indenture to issue a notice of redemption (conditioned upon consummation of the Closing, if issued prior to the Closing) for securities issued such Company Notes providing for the redemption on the Closing Date or such other date as shall be agreed by Parent, in each case with respect to any or Parent and the Company of all of the outstanding aggregate principal amount of such Company Notes (together with all accrued and unpaid interest and applicable premiums related to such Company Notes) and to the extent requested by Parent, satisfaction and discharge of the Company Notes identified Notes, in exchange, pursuant to the requisite provisions of the Indenture (subject to the irrevocable deposit with the Trustee on the Closing Date of funds sufficient to pay in full the outstanding aggregate principal amount of, accrued and unpaid interest through the redemption date on, and applicable premiums related to, such Company Notes, as arranged by Parent (Parent). The notice of redemption delivered to the “Offers to Purchase”) and/or (B) commence Trustee and conduct consent solicitations to obtain from the requisite holders of the Company Notes consent shall state that the redemption date may be delayed until such time as all conditions to certain proposed amendments to redemption stated therein shall be satisfied (or waived by the Company Indenture (in its sole discretion) or such redemption may not occur and such notice may be rescinded in the “Consent Solicitations” and, together with the Offers to Purchase, if any, the “Company Notes Offers and Consent Solicitations”); provided that the closing of event any or all such Offers to Purchase shall not occur, and the amendments in connection with any such Consent Solicitations shall not become operative (although any supplemental indentures entered into in connection with any such Consent Solicitations may become effective upon execution), prior to the Closing; provided, further, that any Company Notes Offers and Consent Solicitations shall be funded using consideration provided by Parent; provided, further, that the consummation of any Company Notes Offer and Consent Solicitation shall not be a condition to the Closing. Any Company Notes Offer and Consent Solicitation shall be made on terms and conditions (including price to be paid and conditionalitythe Closing) as are proposed by Parent, in consultation with the Company, and which are permitted or required by the terms of the Company Indenture and applicable Laws, including applicable SEC rules and regulations. Parent will reasonably consult with the Company regarding the material terms and conditions of any Company Notes Offer and Consent Solicitation, including the timing and commencement thereof and any relevant tender or consent deadlines, including in light of the regular financial reporting schedule of the Company and any requirements of applicable Laws. Parent shall not be permitted to commence any Company Notes Offer and Consent Solicitation until Parent shall have provided the Company with the related offer to purchase, consent solicitation statement, letter of transmittal, if any, been satisfied (or press release, if any, in connection therewith, and each other material document relevant to the transaction that will be distributed by Parent in the applicable Company Notes Offer and Consent Solicitation (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of Parent commencing the applicable Offer to Purchase or Consent Solicitation to allow the Company and its counsel to review and comment on such Debt Offer Documents, and Parent shall give reasonable and good faith consideration to any comments made or input provided waived by the Company and in its legal counselsole discretion). Subject to the receipt of the requisite holder consents, in connection with any or all of the Consent Solicitations, the Company shall execute one or more supplemental indentures to the Company Indenture in accordance with the terms thereof amending the terms and provisions of the Company Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by Parent (each, a “Company Supplemental Indenture”), which such supplemental indenture(s) shall become effective upon the execution thereof but shall not become operative until At the Closing, Parent shall make, or cause to be made, a deposit with the Trustee of funds sufficient to pay in full the outstanding aggregate principal amount of, accrued and unpaid interest through the Company shall use reasonable best efforts to cause the trustee under the Company Indenture to enter into such supplemental indenture(s). The Company shallredemption date on, and shall cause each of the Company Subsidiaries applicable premiums related to, and shall use reasonable best efforts to cause its and their Representatives to, provide all reasonable and customary cooperation as may be reasonably requested by Parent in writing to assist Parent in connection with any Company Notes Offer and Consent Solicitation, including by providing any documents, instruments or letters reasonably necessary to facilitate any Company Notes Offer and Consent Solicitation (including in connection with the execution of any (x) dealer manager agreement, purchase agreement, exchange agreement or similar document or instrument relating to such Company Notes Offer and Consent Solicitation and (y) Company Supplemental Indenture relating to the Consent Solicitations, with respect to which, in each case, the Company shall deliver customary officers’ certificates and counsel to the Company shall provide customary legal opinions, to the applicable dealer manager (or similar party), underwriters’ representative(s) or initial purchaser(s) and/or the trustee under the Company Indenture, as and to the extent applicable, in each case, solely to the extent such certificates or legal opinions, as applicable, would not conflict with applicable Laws and would be accurate in light of the facts and circumstances at the time delivered). In connection with any Offer to Purchase in the form of an exchange offer, the Company shall comply with the obligations set forth in Section 7.15(a) as if such exchange offer was considered a Financing for purposes of this Agreement. The solicitation agent, information agent, depositary or other agent retained in connection with any Company Notes Offer and Consent Solicitation will be selected by Parent, retained by Parent, and their fees and out-of-pocket expenses will be paid directly by Parent (or any Parent Subsidiary). If, at any time prior to the completion of any such Company Notes Offer and Consent Solicitation, the Company or any Parent Subsidiary, on the one hand, or Parent or any Company Subsidiary, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement prepared by Parent describing such information shall be disseminated to the holders of the Company Notes.
(iib) If requested in writing by Parent (but only upon such request)For the avoidance of doubt, in lieu of or in addition to Parent commencing or closing any Company Note Offer and Consent Solicitation for any Company Notes, the Company shall, and shall cause the Company Subsidiaries to, as applicable, prior to Closing: (i) (A) issue a notice of redemption for any or all of the outstanding aggregate principal amount of the Company Notes pursuant to the redemption provisions of the Company Indenture and the Company Notes, which notice of redemption shall be expressly conditioned on the occurrence of the Closing and (B) take any other actions reasonably requested by Parent (which shall not require any payment by the Company or the Company Subsidiaries, unless prior to any such payment, Parent or a Parent Subsidiary deposits or, causes to be deposited, with the Company or a Company Subsidiary the amount of such prepayment) that are customary or necessary in connection therewith, including the Company providing customary officers’ certificates and causing counsel to the Company to provide customary legal opinions, in each case, to the trustee under the Company Indenture in accordance with the terms thereof, to facilitate the redemption (and, if requested by Parent, the satisfaction and discharge) of the Company Notes at the Effective Time pursuant to the redemption and satisfaction and discharge provisions of the Company Indenture and the Company Notes and the other provisions of the Company Indenture and the Company Notes applicable thereto; provided that no such redemption or satisfaction and discharge shall be effective prior to the Effective Time; provided, further, that, if any such notice of conditional redemption or satisfaction and discharge is delivered to the trustee under the Company Indenture in respect of the Company Notes, Parent shall ensure that at the Effective Time, so long as the applicable conditions of such redemption or satisfaction and discharge are satisfied, the Company shall have all funds necessary tendered in connection with any such redemption or satisfaction the Specified Tender Offer Actions shall be satisfied and discharge, or (ii) (A) assist Parent in preparing a supplemental indenture required to comply with the requirements of Sections 5.01, 5.02 and 9.01 of the Company Indenture, which Merger Sub shall execute and deliver, or cause to be executed and delivered, at discharged on or prior to the Effective Time, and (B) provide all assistance reasonably requested by Parent in connection with obtaining the execution of such instruments by the other parties required to execute such instruments and take any other actions reasonably requested by Parent (which shall not require any payment by the Company or the Company Subsidiaries) that are customary or necessary in connection therewith, including the Company providing customary officers’ certificates and causing counsel to the Company to provide customary legal opinions, in each case, to the trustee under the Company Indenture, to the extent such documents are required thereby. In each case, each Party shall provide the other Parties the opportunity to review and comment on all documents and materials prepared in connection with this Section 7.16(b) in advance of their delivery, without any Party being required to request such documents, and shall cooperate reasonably with respect to the other’s comments (other than to the extent that a Party determines in good faith that such comments would reasonably be expected to violate the terms of the Company Indenture). Notwithstanding the foregoing, neither the Company nor the Company Subsidiaries shall be required to execute and deliver any document or instrument (or cause any document or instrument to be executed or delivered) (i) that would be inaccurate in light of the facts and circumstances at the time delivered, or (ii) not conditioned on or delivered substantially concurrently with the occurrence of the Effective TimeClosing Date.
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