Senior Notes. (i) Parent will be permitted to commence and conduct, in accordance with the terms of the 2023 Senior Notes Indenture, the 2025 Senior Notes Indenture and the 2027 Senior Notes Indenture (collectively, the “Indentures”), as applicable, one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the applicable Indenture) and any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of the 2023 Senior Notes, the 2025 Senior Notes and the 2027 Senior Notes (collectively, the “Senior Notes”) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be (A) in compliance with applicable Law, the terms of the Indentures and any other rights of any holder of the Senior Notes and the terms of this Section 5.17(b), (B) at the sole expense of Parent, (C) consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the applicable Senior Notes in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents (in each case, at Parent’s sole expense), which comments shall be considered by Parent in good faith. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. Parent shall expressly condition the closing (or, if applicable, effectiveness) of any of the Debt Offers on the occurrence of the Closing, and the Company will use commercially reasonable efforts to cooperate with Parent, at Parent’s request and sole expense, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to any series of Senior Notes shall not be a condition to Closing. Parent shall conduct any Debt Offer in compliance with (and shall cause the terms of any Debt Offer shall comply with) any applicable provisions of the Indentures and with applicable Law, including the SEC Regulatory Requirements, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the applicable Senior Notes, the applicable Indenture and SEC Regulatory Requirements. Subject to Section 5.17(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries and their respective representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior to the Closing, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the applicable Indentures, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the applicable trustee) conflict with applicable Laws, the applicable terms of the Senior Notes or the Indentures and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.17(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger Sub.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Taylor Morrison Home Corp), Agreement and Plan of Merger (William Lyon Homes)
Senior Notes. (i) Parent will be permitted to commence and conduct, in accordance with the terms of that certain indenture, dated as of May 18, 2017 (the 2023 Senior Notes “Indenture”) by and among the Company, the 2025 Senior Notes Indenture subsidiary guarantors party thereto and the 2027 Senior Notes Indenture Wilmington Trust, National Association, as trustee (collectively, the “IndenturesTrustee”), as applicable, one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the applicable Indenture) and or any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of the 2023 Senior Notes, the 2025 6.625% Senior Notes and due 2022 issued by the 2027 Senior Notes Company prior to the date hereof pursuant to the Indenture (collectively, the “Senior Notes”) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be (A) in compliance with applicable Law, the terms of the Indentures and any other rights of any holder of the Senior Notes and the terms of this Section 5.17(b), (B) at the sole expense of Parent, (C) consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the applicable Senior Notes in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents (in each case, at Parent’s sole expense), which comments shall be considered by Parent in good faithDocuments. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. Parent shall expressly condition the The closing (or, if applicable, effectiveness) of any of the Debt Offers shall be expressly conditioned on the occurrence of the Closing, and the Company will use commercially reasonable best efforts to cooperate with Parent, at Parent’s request and sole expenserequest, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to any series of the Senior Notes shall not be a condition to Closing. Parent The Debt Offers shall conduct any Debt Offer be conducted in compliance with (and shall cause the terms of any Debt Offer shall comply with) any applicable provisions of the Indentures Indenture and with applicable Law, including the SEC Regulatory Requirements, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the applicable Senior Notes, the applicable Indenture and SEC Regulatory Requirements. Subject to Section 5.17(b5.13(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries and their respective representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior to the Closing, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the applicable IndenturesIndenture, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the applicable trusteeTrustee) conflict with applicable Laws, the applicable terms of the Senior Notes or the Indentures Indenture and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.17(b)(i5.14(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger Sub.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (AV Homes, Inc.), Agreement and Plan of Merger (Taylor Morrison Home Corp)
Senior Notes. (i) Parent will be permitted to commence and conduct, in accordance with the terms Upon written request of the 2023 Senior Notes IndentureParent, the 2025 Senior Notes Indenture Partnership shall, and the 2027 Senior Notes Indenture (collectivelyshall cause all applicable Group Members to, the “Indentures”)and shall use commercially reasonable efforts to cause its and their Representatives to, as applicable, one (i) deliver to the trustee under the Senior Notes Indenture at or more offers prior to purchase, including any “Change of Control Offer” (as such term is defined in the applicable Indenture) and any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (eachEffective Time, a “Debt Offer” and collectively, the “Debt Offers”), with respect notice of optional redemption for up to any or all of the outstanding aggregate principal amount of the 2023 Senior Notes, the 2025 Senior Notes and the 2027 Senior Notes (collectively, the “Senior Notes”) identified by Parent pursuant to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be (A) in compliance with applicable Law, the terms of the Indentures and any other rights of any holder redemption provisions of the Senior Notes Indenture and the terms of this Section 5.17(b), (B) at the sole expense of Parent, (C) consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the applicable Senior Notes in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents (in each case, at Parent’s sole expense)Notes, which comments notice shall be considered by Parent in good faith. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. Parent shall expressly condition the closing (or, if applicable, effectiveness) of any of the Debt Offers on subject to the occurrence of the ClosingEffective Time, and (ii) provide assistance reasonably requested by the Company will use commercially reasonable efforts to cooperate with Parent, at Parent’s request and sole expense, Parent to facilitate the initial settlement redemption of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to any series of Senior Notes shall not be a condition Indenture identified by the Parent and the satisfaction and discharge of the Senior Notes identified by the Parent at the Effective Time pursuant to Closing. Parent shall conduct any Debt Offer in compliance with (the redemption and shall cause the terms of any Debt Offer shall comply with) any satisfaction and discharge provisions, respectively, and other applicable provisions of the Indentures and with applicable LawSenior Notes Indenture (each, including the SEC Regulatory Requirements, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the applicable Senior Notes, the applicable Indenture and SEC Regulatory Requirements. Subject to Section 5.17(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries and their respective representatives toa “Discharge”) and, in each case, use their reasonable best efforts to provide all cooperation take any other actions reasonably requested by Parent that are customary or necessary in connection with the Debt Offer; provided that prior to the Closingtherewith, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with including the execution and delivery by the Partnership, all applicable Group Members or their Representatives (as applicable) of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, officers’ certificates and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the applicable IndenturesSenior Notes Indenture, to the extent such certificates and opinions would not (in are required thereby or reasonably requested by the opinion of the Company, its counsel and the applicable trustee) conflict with applicable Laws, the applicable terms of the Senior Notes or the Indentures and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.17(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such complianceTrustee. Notwithstanding anything herein to the foregoing and for the avoidance of doubtcontrary, in no event shall this Section 6.16(b) require the Company Partnership or its legal counsel any of the Group Members to cause any redemption or Discharge to be required effective unless and until the Effective Time has occurred and Parent has provided or caused to give an opinion with respect be provided to the Financing Trustee under the Senior Notes Indenture funds (or Parent has directed the Partnership or any other financing of Parent the Partnership’s Subsidiaries to use funds on their balance sheet) sufficient to effect any such redemption or Merger SubDischarge in compliance with the provisions of the Senior Notes Indenture.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Rattler Midstream Lp), Agreement and Plan of Merger (Rattler Midstream Lp)
Senior Notes. (ia) The Company shall commence, or shall cause USCC to commence, on or prior to the fourth Business Day following the date of this Agreement or on any later date requested by the Company and consented to by Parent will (which consent shall not be permitted to commence and conduct, in accordance with the terms of the 2023 Senior Notes Indenture, the 2025 Senior Notes Indenture and the 2027 Senior Notes Indenture (collectively, the “Indentures”unreasonably withheld or delayed), as applicable, one or more offers to purchase, including any “Change of Control Offer” (as such term is defined and related consent solicitations to eliminate certain covenants and provisions in the applicable IndentureIndenture (as defined below) and any tender offerrelating to, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of USCC’s 12-3/8% Senior Subordinated Notes due 2010 (the 2023 “Subordinated Notes”) and USCC’s 10-7/8% Senior Secured Notes due 2010 (the “Secured Notes”, and together with the Subordinated Notes, the 2025 Senior Notes and the 2027 Senior Notes (collectively, the “Senior Notes”) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be (A) in compliance with applicable Law, the terms of the Indentures and any other rights of any holder of the Senior Notes and the terms of this Section 5.17(b), (B) at the sole expense of Parent, (C) consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer conditions set forth in one or more offers to purchase, offer to exchange, consent solicitation statement, letter letters of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the applicable Senior Notes in the applicable Debt Offer related documents (collectively, the “Debt Offer Documents”) a period of time ), each in advance of commencing form and substance reasonably satisfactory to Parent (the applicable “Debt Offer to allow Offer”). The parties agree that, and the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents shall reflect that, consummation of the Debt Offer shall be conditioned on (i) receipt of valid and unrevoked consents from holders of a majority in aggregate principal amount of each case, at Parent’s sole expenseseries of outstanding Notes (the “Consent Condition”), which comments (ii) the execution and delivery of the supplemental indentures referred to in Section 6.10(b) by the applicable trustee, (iii) the consummation of the Merger and (iv) the satisfaction of other customary conditions to be set forth in the Debt Offer Documents. The Company (i) shall be considered by Parent in good faith. Parent will reasonably consult with waive any of the Company regarding conditions to the material terms and conditions of any Debt Offer (other than financial terms), including that the timing Merger shall have been consummated) and commencement of make any Debt Offer change to the terms and any relevant tender or consent deadlines. Parent shall expressly condition the closing (or, if applicable, effectiveness) of any conditions of the Debt Offers on Offer as may be reasonably requested by Parent so long as the occurrence of the Closing, and Parent agrees to hold the Company will use commercially reasonable efforts and USCC harmless from any cost or expense relating to cooperate with or arising from such waiver or changes and (ii) shall not, without the written consent of Parent, at Parent’s request waive any condition to the Debt Offer or make any changes to the terms and sole expense, to facilitate the initial settlement conditions of the Debt Offers by Parent on Offer. Notwithstanding the Closing Date; providedimmediately preceding sentence, that and subject to the consummation of a terms and conditions set forth in the Debt Offer with respect to any series of Senior Notes shall not be a condition to Closing. Parent shall conduct any Debt Offer in compliance with (and shall cause the terms of any Debt Offer shall comply with) any applicable provisions of the Indentures and with applicable LawDocuments, including the SEC Regulatory Requirements, and the Company shall not be required to cooperate with respect to any amend the terms and conditions of the Debt Offer that is not pursuant to instructions from Parent if such amendment would decrease the price per applicable Note payable in compliance with the applicable Senior Notes, the applicable Indenture and SEC Regulatory Requirements. Subject to Section 5.17(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries and their respective representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior , increase the Consent Condition, impose conditions to the ClosingDebt Offer in addition to those set forth in the Debt Offer Documents that are materially adverse to the tendering holders of the Notes, neither materially interfere with the Company nor any 44 ability of the Company Subsidiaries, nor counsel for or USCC to complete the Company shall be required Spin-Off or materially interfere with Parent’s ability to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the applicable Indentures, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the applicable trustee) conflict with applicable Laws, the applicable terms of obtain the Senior Notes or the Indentures and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.17(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger SubSecured Financing.
Appears in 1 contract
Senior Notes. (i) Parent will be permitted to commence and conductAs promptly as practicable following the date hereof, in accordance with the terms Company shall solicit waivers from holders of a requisite majority or majorities of the 2023 Company's outstanding 14% Senior Notes Indenture, due 2007 (the 2025 Senior Notes Indenture and "Notes") of the 2027 Senior Notes Indenture (collectively, applicability to the “Indentures”)transactions contemplated hereby of certain covenants set forth in the indenture governing the Notes, as applicable, one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the applicable Indenture) and any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of the 2023 Senior Notes, the 2025 Senior Notes and the 2027 Senior Notes (collectively, the “Senior Notes”) identified by Parent to the Company in writing prior to(such waivers, onthe "Requisite Waivers"). If requested by RV, or after the Company shall prepare and distribute to the holders of the Notes, as promptly as reasonably practicable following the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be (A) in compliance with applicable Law, which the terms of the Indentures and any other rights of any holder of the Senior Notes and the terms of this Section 5.17(b), (B) at the sole expense of Parent, (C) consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent Registration Statement shall have provided the Company with the necessary been declared effective, an offer to purchase, offer to exchange, purchase and consent solicitation statement, letter of on terms and conditions and in a form satisfactory to RV (together with all related transmittal and press releaseconsent forms and other documents delivered to such holders, the "Tender Offer Statement"), seeking the tender, and the delivery of an accompanying consent by holders of a requisite majority or majorities of outstanding principal amount of the Notes ("Requisite Majority") to the amendments to the indenture constituting the Notes as are considered necessary or appropriate by RV. RV shall be entitled to participate in the preparation of the Tender Offer Statement and in any discussions with holders of Notes relating to the terms of any offer to purchase Notes or solicitation of consents or waivers. The Company shall not distribute to any Person the Tender Offer Statement or any written material relating to any offer to purchase Notes or to the solicitation of any consents or waivers from holders of the Notes, or make any announcement with respect to the Tender Offer Statement or any such offer or solicitation, or engage, directly or through intermediaries, in any discussions with any holder of Notes after the date hereof, without the prior express approval of RV. Any registration statement, if any, required in connection therewith with any such offer or solicitation shall be in form and each other document relevant substance satisfactory to such transaction that will RV, and RV shall be distributed by Parent entitled to holders of the applicable Senior Notes participate in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a period of time in advance of commencing the applicable Debt Offer to allow the Company preparation and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents (in each case, at Parent’s sole expense), which comments shall be considered by Parent in good faith. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. Parent shall expressly condition the closing (or, if applicable, effectiveness) of any of the Debt Offers on the occurrence of the Closing, and the Company will use commercially reasonable efforts to cooperate with Parent, at Parent’s request and sole expense, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to any series of Senior Notes shall not be a condition to Closing. Parent shall conduct any Debt Offer in compliance with (and shall cause the terms of any Debt Offer shall comply with) any applicable provisions of the Indentures and with applicable Law, including the SEC Regulatory Requirementsfiling thereof, and the Company shall not be required to cooperate with respect to any Debt in such preparation and filing as the registrant thereunder. If RV shall have requested the distribution of a Tender Offer that is not in compliance with the applicable Senior Notes, the applicable Indenture and SEC Regulatory Requirements. Subject to Section 5.17(b)Statement, at Parent’s expense, the Closing (provided that the Requisite Majority has been obtained) the Company shall execute and deliver to the trustee under the indenture relating to the Notes a supplemental indenture in the form specified in, and otherwise in accordance with, such Tender Offer Statement. On or prior to the settlement date of any tender offer, Parent shall, and shall cause RV to, provide financing as necessary to enable the Company Subsidiaries and their respective representatives toto pay for tendered Notes, in each case, use their reasonable best efforts to provide a manner not inconsistent with the terms of the Tender Offer Statement. The Company shall be responsible for all cooperation reasonably requested out-of-pocket expenses incurred by Parent it in connection with the Debt Offer; making of any offers to purchase Notes or solicitation as contemplated in this Section, provided that prior to the Closing, neither RV shall pay and reimburse the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the applicable Indentures, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the applicable trustee) conflict with applicable Laws, the applicable terms of the Senior Notes or the Indentures and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.17(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger Sub.all out-of-pocket fees and
Appears in 1 contract
Samples: Agreement and Plan of Merger (At&t Latin America Corp)
Senior Notes. (i) Parent will be permitted to commence and conductAs promptly as practicable following the date hereof, in accordance with the terms Company shall solicit waivers from holders of a requisite majority or majorities of the 2023 Company's outstanding 14% Senior Notes Indenture, due 2007 (the 2025 Senior Notes Indenture and "NOTES") of the 2027 Senior Notes Indenture (collectively, applicability to the “Indentures”)transactions contemplated hereby of certain covenants set forth in the indenture governing the Notes, as applicable, one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the applicable Indenture) and any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of the 2023 Senior Notes, the 2025 Senior Notes and the 2027 Senior Notes (collectively, the “Senior Notes”) identified by Parent to the Company in writing prior to(such waivers, onthe "REQUISITE WAIVERS"). If requested by RV, or after the Company shall prepare and distribute to the holders of the Notes, as promptly as reasonably practicable following the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be (A) in compliance with applicable Law, which the terms of the Indentures and any other rights of any holder of the Senior Notes and the terms of this Section 5.17(b), (B) at the sole expense of Parent, (C) consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent Registration Statement shall have provided the Company with the necessary been declared effective, an offer to purchase, offer to exchange, purchase and consent solicitation statement, letter of on terms and conditions and in a form satisfactory to RV (together with all related transmittal and press releaseconsent forms and other documents delivered to such holders, the "TENDER OFFER STATEMENT"), seeking the tender, and the delivery of an accompanying consent by holders of a requisite majority or majorities of outstanding principal amount of the Notes ("REQUISITE MAJORITY") to the amendments to the indenture constituting the Notes as are considered necessary or appropriate by RV. RV shall be entitled to participate in the preparation of the Tender Offer Statement and in any discussions with holders of Notes relating to the terms of any offer to purchase Notes or solicitation of consents or waivers. The Company shall not distribute to any Person the Tender Offer Statement or any written material relating to any offer to purchase Notes or to the solicitation of any consents or waivers from holders of the Notes, or make any announcement with respect to the Tender Offer Statement or any such offer or solicitation, or engage, directly or through intermediaries, in any discussions with any holder of Notes after the date hereof, without the prior express approval of RV. Any registration statement, if any, required in connection therewith with any such offer or solicitation shall be in form and each other document relevant substance satisfactory to such transaction that will RV, and RV shall be distributed by Parent entitled to holders of the applicable Senior Notes participate in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a period of time in advance of commencing the applicable Debt Offer to allow the Company preparation and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents (in each case, at Parent’s sole expense), which comments shall be considered by Parent in good faith. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. Parent shall expressly condition the closing (or, if applicable, effectiveness) of any of the Debt Offers on the occurrence of the Closing, and the Company will use commercially reasonable efforts to cooperate with Parent, at Parent’s request and sole expense, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to any series of Senior Notes shall not be a condition to Closing. Parent shall conduct any Debt Offer in compliance with (and shall cause the terms of any Debt Offer shall comply with) any applicable provisions of the Indentures and with applicable Law, including the SEC Regulatory Requirementsfiling thereof, and the Company shall not be required to cooperate with respect to any Debt in such preparation and filing as the registrant thereunder. If RV shall have requested the distribution of a Tender Offer that is not in compliance with the applicable Senior Notes, the applicable Indenture and SEC Regulatory Requirements. Subject to Section 5.17(b)Statement, at Parent’s expense, the Closing (provided that the Requisite Majority has been obtained) the Company shall execute and deliver to the trustee under the indenture relating to the Notes a supplemental indenture in the form specified in, and otherwise in accordance with, such Tender Offer Statement. On or prior to the settlement date of any tender offer, Parent shall, and shall cause RV to, provide financing as necessary to enable the Company Subsidiaries and their respective representatives toto pay for tendered Notes, in each case, use their reasonable best efforts to provide a manner not inconsistent with the terms of the Tender Offer Statement. The Company shall be responsible for all cooperation reasonably requested out-of-pocket expenses incurred by Parent it in connection with the Debt Offer; provided making of any offers to purchase Notes or solicitation as contemplated in this Section, PROVIDED that RV shall pay and reimburse the Company for all out-of-pocket fees and expenses of outside advisers actually incurred by the Company prior to the Closing, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the applicable Indentures, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the applicable trustee) conflict with applicable Laws, the applicable terms of the Senior Notes or the Indentures and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.17(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under Closing if this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, is terminated in no event shall the Company or its legal counsel be required to give an opinion accordance with respect to the Financing or any other financing of Parent or Merger SubSection 6.1(b)(i).
Appears in 1 contract
Senior Notes. (i) Parent will be permitted to commence and conduct, in accordance with the terms of the 2023 Senior Notes Indenture, the 2025 Senior Notes Indenture and the 2027 Senior Notes Indenture (collectively, the “Indentures”), as applicable, one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the applicable Indenture) and any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of the 2023 Senior Notes, the 2025 Senior Notes and the 2027 Senior Notes (collectively, the “Senior Notes”) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be (A) in compliance with applicable Law, the terms of the Indentures and any other rights of any holder of the Senior Notes and the terms of this Section 5.17(b), (B) at the sole expense Upon written request of Parent, (C) consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the applicable Senior Notes in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents (in each case, at Parent’s sole expense), which comments shall be considered by Parent in good faith. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. Parent shall expressly condition the closing (or, if applicable, effectiveness) of any of the Debt Offers on the occurrence of the Closing, and the Company will use commercially reasonable efforts to cooperate with Parent, at Parent’s request and sole expense, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to any series of Senior Notes shall not be a condition to Closing. Parent shall conduct any Debt Offer in compliance with (and shall cause the terms of any Debt Offer shall comply with) any applicable provisions of the Indentures and with applicable Law, including the SEC Regulatory Requirements, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the applicable Senior Notes, the applicable Indenture and SEC Regulatory Requirements. Subject to Section 5.17(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries to, and shall use commercially reasonable efforts to cause its and their respective representatives Representatives to, as applicable, (i) deliver to the trustee under each Senior Notes Indenture at or prior to the Effective Time, a notice of optional redemption for up to all of the outstanding aggregate principal amount of any series of Senior Notes outstanding and identified by Parent, pursuant to the redemption provisions of the applicable Senior Notes Indenture and the Senior Notes and (ii) provide assistance reasonably requested by Parent to facilitate the redemption of the related Senior Notes Indenture identified by Parent and the satisfaction and discharge of any series of Senior Notes identified by Parent at the Effective Time pursuant to the redemption and satisfaction and discharge provisions, respectively, and other applicable provisions of the applicable Senior Notes Indenture (each, a “Discharge”) and, in each case, use their reasonable best efforts to provide all cooperation take any other actions reasonably requested by Parent that are customary or necessary in connection with the Debt Offer; provided that prior to the Closingtherewith, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with including the execution of a supplemental indenture relating to any consent solicitation of and delivery by the type described in clause (ii) belowCompany, the Company delivering Subsidiaries or their Representatives (as applicable) of customary officer’s certificates, officers’ certificates and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the applicable IndenturesSenior Notes Indenture, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and are required thereby or reasonably requested by the applicable trustee) conflict with applicable Laws, . The Company (or the applicable terms Company Subsidiary) shall deliver a copy of the Senior Notes any such notice or the Indentures and would be accurate in light of the facts and circumstances other document to Parent at the time deliveredleast three (3) business days prior to delivering or execute any entering into such notice or other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.17(b)(i), Parent document and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such complianceinclude any proposed changes thereon that Parent reasonably requests. Notwithstanding anything herein to the foregoing and for the avoidance of doubtcontrary, in no event shall this Section 7.14(b) require the Company or its legal counsel any of the Company Subsidiaries to cause any Discharge to be required effective unless and until the Effective Time has occurred and Parent has provided or caused to give an opinion with respect be provided to the Financing trustee under the Senior Notes Indentures funds (or Parent has directed the Company or any other financing of Parent or Merger Subthe Company’s Subsidiaries to use funds on their balance sheet) sufficient to effect any such Discharge in compliance with the provisions of such applicable Senior Notes Indenture.
Appears in 1 contract
Senior Notes. (i) Parent will be permitted to commence and conduct, in accordance with the terms of the 2023 Senior Notes Indenture, the 2025 Senior Notes Indenture and the 2027 Senior Notes Indenture (collectively, the “Indentures”), as applicable, one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the applicable Indenture) and and/or any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of the 2023 Senior Notes, the 2025 Senior Notes and the 2027 Senior Notes (collectively, the “Senior Notes”) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, provided that any such Debt Offer shall be (A) in compliance with applicable Law, the terms of the Indentures and any other rights of any holder of the Senior Notes and the terms of this Section 5.17(b), (B) at the sole expense of Parent, (C) is consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, or other related documents in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of with the applicable Senior Notes in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents (in each case, at Parent’s sole expense), which comments shall be considered by Parent in good faithDocuments. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. Parent shall expressly condition the The closing (or, if applicable, effectiveness) of any of the Debt Offers shall be expressly conditioned on the occurrence of the ClosingClosing or the acceptance for purchase of the Senior Notes by Parent or Merger Sub, and the Company will parties shall use commercially reasonable best efforts to cooperate with Parent, at Parent’s request and sole expense, to facilitate the initial settlement of cause the Debt Offers by Parent to close on the Closing Date; provided, provided that the consummation of a Debt Offer with respect to any series of the Senior Notes shall not be a condition to Closing. Parent The Debt Offers shall conduct any Debt Offer be conducted in compliance with (the Indenture and shall cause the terms of any Debt Offer shall comply with) any applicable provisions of the Indentures and with applicable Law, including the SEC Regulatory Requirementsrules and regulations, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the applicable Senior Notes, the applicable Indenture and SEC Regulatory Requirementsapplicable Laws. Subject to Section 5.17(b), at Parent’s expense, the The Company shall, and shall cause the Company its Subsidiaries and their respective representatives Representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior to the Closing, neither the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the applicable Indentures, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the applicable trustee) conflict with applicable Laws, the applicable terms of the Senior Notes or the Indentures and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements any applicable Law conflict with this Section 5.17(b)(i)6.14, Parent and the Company shall comply with SEC Regulatory Requirements the applicable Law and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger Sub.
Appears in 1 contract
Samples: Agreement and Plan of Merger (ClubCorp Holdings, Inc.)
Senior Notes. (ia) Parent will be permitted The Company shall use its commercially reasonable efforts to commence commence, as promptly as practicable on or after the date hereof and conductfollowing receipt of written instructions from Parent, in accordance a consent solicitation with the terms respect to a modification of the 2023 Senior Notes definition of “Investors” in the Indenture, dated June 15, 2010 (the 2025 Senior Notes Indenture and the 2027 Senior Notes Indenture “Indenture”), among Trans Union LLC (collectively“Trans Union LLC”), TransUnion Financing Corporation (together with Trans Union LLC, the “IndenturesIssuers”), the subsidiary guarantors party thereto and Xxxxx Fargo Bank, National Association, as applicabletrustee, one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in governing the applicable Indenture) and any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of the 2023 Senior Notes, the 2025 11 3/8% Senior Notes and the 2027 Senior Notes due 2018 (collectively, the “Senior Notes”) identified by Parent to of the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be (A) in compliance with applicable LawIssuers, the terms primary effect of which will be that the Indentures and any other rights of any holder of Trans Union LLC shall not be required to offer to purchase the Senior Notes and after consummation of the terms Merger (or as may otherwise be reasonably determined by Parent for the purpose of this Section 5.17(bfacilitating the transactions contemplated hereby), (B) at the sole expense and upon termination of such consent solicitation, upon receipt of written instructions from Parent, such other consent solicitation relating to the Senior Notes reasonably requested by Parent for the purpose of facilitating the transactions contemplated hereby (C) consummated using funds provided each, a “Consent Solicitation”). Any Consent Solicitation will contain such customary terms and conditions as are reasonably determined by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent ; provided that (i) this Agreement shall have provided not been terminated in accordance with Section 10.1 and (ii) either the Company shall have received from Parent all necessary and appropriate documentation in connection with the necessary offer to purchaseConsent Solicitation, offer to exchange, including the consent solicitation statement, letter of transmittal consent forms and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the applicable Senior Notes in the applicable Debt Offer related documents (collectively, the “Debt Offer Solicitation Documents”) a period of time ), which shall be in advance of commencing form and substance reasonably satisfactory to the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents (in each caseCompany, or, at Parent’s sole expense)request, which comments the Company shall prepare, or cause to be considered prepared, such Solicitation Documents, as described in Section 5.4(c) below. The Company shall waive any of the conditions relating to any Consent Solicitation, as applicable, as may be reasonably requested by Parent in good faithwriting and shall not, without the written consent of Parent, waive any condition to any Consent Solicitation or make any changes to any Consent Solicitation other than as agreed between Parent and the Company. Parent will reasonably consult with The Company shall use its commercially reasonable efforts to promptly make any change to the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. Parent shall expressly condition the closing (or, if applicable, effectiveness) of any of the Debt Offers on the occurrence of the Closing, and the Company will use commercially reasonable efforts to cooperate with Parent, at Parent’s request and sole expense, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to any series of Senior Notes shall not be a condition to Closing. Parent shall conduct any Debt Offer in compliance with (and shall cause the terms of any Debt Offer shall comply with) any applicable provisions of the Indentures and with applicable Law, including the SEC Regulatory Requirements, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the applicable Senior Notes, the applicable Indenture and SEC Regulatory Requirements. Subject to Section 5.17(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries and their respective representatives to, in each case, use their reasonable best efforts to provide all cooperation Consent Solicitation reasonably requested by Parent Parent. Notwithstanding the foregoing, any proposed amendments to the Indenture contemplated by the Consent Solicitation shall revert to the form in connection with the Debt Offer; provided that effect prior to the Closing, neither effectiveness of any proposed amendments and be of no further effect if the Company nor any of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the applicable Indentures, to the extent such certificates and opinions would Closing does not (in the opinion of the Company, its counsel and the applicable trustee) conflict with applicable Laws, the applicable terms of the Senior Notes or the Indentures and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.17(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger Suboccur.
Appears in 1 contract
Senior Notes. (a) At the request of Parent, the Partnership shall use its commercially reasonable efforts to commence as promptly as practicable following the later of (1) the tenth (10th) Business Day prior to the estimated date that the definitive Proxy Statement is filed with the SEC and (2) the date of receipt of the Offer Documents from Parent pursuant to Section 5.18(c) below and written instructions from Parent, offers to purchase and related consent solicitations with respect to all of the outstanding securities issued pursuant to (i) Parent will be permitted to commence and conduct, in accordance with the terms of the 2023 2.625% Senior Notes Indenture, (ii) the 2025 3.85% Senior Notes Indenture, (iii) the 4.25% Senior Notes Indenture and and/or (iv) the 2027 6.125% Senior Notes Indenture (collectively, the “Indentures”), as applicable, one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the applicable Indenture) and any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of the 2023 Senior Notes, the 2025 Senior Notes and the 2027 Senior Notes (collectively, the “Senior Notes”) identified on terms and conditions as determined by Parent and as are reasonably acceptable to the Company in writing prior to(such offers to purchase and related consent solicitations, on, or after the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be (A) in compliance with applicable Law, the terms of the Indentures and any other rights of any holder of the Senior Notes and the terms of this Section 5.17(b), (B) at the sole expense of Parent, (C) consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the applicable Senior Notes in the applicable Debt Offer (collectively, the “Debt Offer DocumentsOffers”); provided that (i) a period of time this Agreement shall have not been terminated in advance of commencing the applicable Debt Offer to allow accordance with Article VII, (ii) the Company and its counsel a reasonable opportunity to review and comment on shall have received from Parent the related Debt completed Offer Documents (in each case, at Parent’s sole expense), which comments shall be considered in form and substance reasonably satisfactory to the Company, and (iii) at the time of such commencement, Parent, Merger Sub I and Merger Sub II shall have otherwise performed or complied with all of their agreements and covenants required by Parent this Agreement to be performed on or prior to the time that the Debt Offers are to be commenced. The Debt Offers and Offer Documents shall comply in good faith. Parent will reasonably consult all respects with the Company regarding the material terms and conditions of the indentures governing the Senior Notes and applicable Laws (including the rules and regulations of the SEC), and the Debt Offers shall be conditioned upon the consummation of the Mergers. The Partnership shall waive any of the conditions to the Debt Offer Offers (other than financial terms), including that the timing Mergers shall have been consummated and commencement of any Debt Offer and any relevant tender or consent deadlines. Parent that there shall expressly condition the closing (or, if applicable, effectiveness) of any be no Law prohibiting consummation of the Debt Offers on the occurrence of the Closing, Offers) as may be reasonably requested by Parent in writing and the Company will use commercially reasonable efforts shall not waive any condition to cooperate with Parent, at Parent’s request and sole expense, to facilitate the initial settlement of the Debt Offers or make any changes to the Debt Offers other than as agreed by Parent on Parent. Notwithstanding the Closing Date; providedforegoing, that the consummation of a Debt Offer with respect to any series of Senior Notes shall not be a condition to Closing. Parent shall conduct any Debt Offer in compliance with (and shall cause the terms of any Debt Offer shall comply with) any applicable provisions of the Indentures and with applicable Law, including the SEC Regulatory Requirements, and the Company Partnership shall not be required to cooperate with respect to make any Debt Offer that is not in compliance with the applicable Senior Notes, the applicable Indenture and SEC Regulatory Requirements. Subject to Section 5.17(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries and their respective representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior change to the Closing, neither the Company nor any terms and conditions of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other thanafter commencement thereof that decreases the price or consent fee payable per Senior Note or imposes any condition that is adverse to the holders of Senior Notes unless agreed by the Company. At the request of Parent, in connection with the execution of a supplemental indenture relating Partnership shall terminate the Debt Offers as to any consent solicitation or all series of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the applicable Indentures, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the applicable trustee) conflict with applicable Laws, the applicable terms of the Senior Notes or the Indentures and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.17(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger SubNotes.
Appears in 1 contract
Senior Notes. (a) At such time as reasonably requested by Purchaser in writing (provided that it shall coordinate with PFG regarding such timing), PFG shall, subject to compliance with any applicable provisions of the Indenture, (i) Parent will be permitted commence a cash tender offer to commence and conduct, in accordance with the terms of the 2023 Senior Notes Indenture, the 2025 Senior Notes Indenture and the 2027 Senior Notes Indenture (collectively, the “Indentures”), as applicable, one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the applicable Indenture) and any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or purchase all of the outstanding aggregate principal amount Senior Notes and/or (ii) solicit the consent of the 2023 Senior Notes, the 2025 Senior Notes and the 2027 Senior Notes (collectively, the “Senior Notes”) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be (A) in compliance with applicable Law, the terms of the Indentures and any other rights of any holder holders of the Senior Notes and regarding certain amendments (the terms "Indenture Amendments") to certain of this Section 5.17(b), (B) at the sole expense of Parent, (C) consummated using funds provided by Parentcovenants contained in the Indenture. Parent shall not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary Such offer to purchase, offer to exchange, purchase and/or consent solicitation statement, letter of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the applicable Senior Notes in the applicable Debt Offer (individually or collectively, the “"Debt Offer Documents”Offer") a period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents (in each case, at Parent’s sole expense), which comments shall be considered made on such terms and conditions as are reasonably requested by Parent Purchaser and agreed to by PFG (such agreement not to be unreasonably withheld); provided that, in good faith. Parent will reasonably consult with any event, the Company regarding the material terms and conditions of any the Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. Parent shall expressly condition provide that the closing (or, if applicable, effectiveness) of any of the Debt Offers on the occurrence of thereof shall be contingent upon the Closing, . It is expressly understood and the Company will use commercially reasonable efforts to cooperate with Parent, at Parent’s request and sole expense, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, agreed that the consummation of a Debt Offer with respect to any series of Senior Notes foregoing shall not be a condition to Closing and shall in no event delay or hinder the Closing. Parent PFG shall conduct waive any of the conditions to the Debt Offer and make any other changes in the terms and conditions of the Debt Offer as may be reasonably requested by Purchaser and PFG shall not, without Purchaser's prior consent, waive any condition to the Debt Offer or make any changes to the terms and conditions of the Debt Offer, in each case except as required by applicable Law and subject to compliance with (and shall cause the terms of any Debt Offer shall comply with) any applicable provisions of the Indentures Indenture. PFG covenants and with applicable Lawagrees, subject to the terms and conditions of this Agreement and the receipt of the necessary funds from LNY pursuant to the immediately following sentence, including the SEC Regulatory Requirementsterms and conditions to the Debt Offer, to accept for payment, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the applicable Senior Notespay for, the applicable Senior Notes and effect the Indenture and SEC Regulatory Requirements. Subject to Section 5.17(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries and their respective representatives toAmendments, in each casecase contemporaneously with, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior to and contingent upon, the Closing, neither the Company nor in each case except as required by applicable Law and subject to compliance with any applicable provisions of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other thanIndenture. Without, in connection any way limiting Section 5.14(d), LNY covenants and agrees to provide the necessary funds to effect the foregoing sentence. PFG agrees to enter into a customary dealer manager agreement and a customary information agent agreement with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, dealer manager and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinionsinformation agent, respectively, recommended by Purchaser (and reasonably acceptable to the trustee under the applicable Indentures, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the applicable trustee) conflict with applicable Laws, the applicable terms of the Senior Notes or the Indentures and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.17(b)(iPFG), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger Sub.
Appears in 1 contract
Samples: Stock Purchase Agreement (Poster Financial Group Inc)
Senior Notes. (i) Parent will be permitted Prior to commence and conduct, in accordance with the terms of the 2023 Senior Notes Indenture, the 2025 Senior Notes Indenture and the 2027 Senior Notes Indenture (collectively, the “Indentures”), as applicable, one or more offers to purchase, including any “Change of Control Offer” (as such term is defined in the applicable Indenture) and any tender offer, or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt Offers”)Effective Time, with respect to any or the Company Senior Notes, the Company shall, upon request of Parent, (i) use its reasonable best efforts to issue a notice of redemption (contingent upon the occurrence of the Closing) at least 10 days but not more than 60 days before the redemption date agreed with Parent (such redemption date not to be a date prior to the Effective Time) for all of the outstanding aggregate principal amount of such Company Senior Notes pursuant to the 2023 applicable provisions of the Company Senior Notes Indenture and (ii) take any actions reasonably requested by Parent in accordance with terms of the Company Senior Notes Indenture that are customary or necessary to facilitate the redemption of such Company Senior Notes pursuant to the Company Senior Notes Indenture on or after the Effective Time (including delivering to the trustee under the Company Senior Notes any officer’s certificate required pursuant to the Company Senior Notes Indenture in connection with the redemption of the Company Senior Notes), and Parent will provide (or cause to be provided) (including by means of the Company at or after the Closing) on or after the Closing Date funds in an amount equal to the amount necessary for the Company to redeem, defease, satisfy and/or discharge the Company Senior Notes, the 2025 Senior Notes and the 2027 Senior Notes (collectively, the “Senior Notes”) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be (A) in compliance with applicable Law, the terms of the Indentures and any other rights of any holder of the Senior Notes and the terms of this Section 5.17(b), (B) at the sole expense of Parent, (C) consummated using funds provided if requested by Parent. Parent shall not Any such redemption or satisfaction and discharge must be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the applicable Senior Notes in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents (in each case, at Parent’s sole expense), which comments shall be considered by Parent in good faith. Parent will reasonably consult with the Company regarding the material terms and conditions of any Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. Parent shall expressly condition the closing (or, if applicable, effectiveness) of any of the Debt Offers conditioned on the occurrence of the Closing, and . All documentation regarding the Company will use commercially reasonable efforts to cooperate with Parent, at Parent’s request and sole expense, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, that the consummation of a Debt Offer with respect to any series of Senior Notes foregoing shall not be a condition to Closing. Parent shall conduct any Debt Offer in compliance with (and shall cause the terms of any Debt Offer shall comply with) any applicable provisions of the Indentures and with applicable Law, including the SEC Regulatory Requirements, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the applicable Senior Notes, the applicable Indenture and SEC Regulatory Requirements. Subject to Section 5.17(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries and their respective representatives to, in each case, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior subject to the Closingreview and approval (not to be unreasonably withheld, neither the Company nor any conditioned or delayed) of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other than, in connection with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinions, respectively, to the trustee under the applicable Indentures, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the applicable trustee) conflict with applicable Laws, the applicable terms of the Senior Notes or the Indentures and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.17(b)(i), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger SubParent.
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Senior Notes. (a) At such time as reasonably requested by Purchaser in writing (provided that it shall coordinate with PFG regarding such timing), PFG shall, subject to compliance with any applicable provisions of the Indenture, (i) Parent will be permitted commence a cash tender offer to commence and conduct, in accordance with the terms purchase all of the 2023 outstanding Senior Notes Indenture, and/or (ii) solicit the 2025 consent of the holders of the Senior Notes Indenture and the 2027 Senior Notes Indenture regarding certain amendments (collectively, the “IndenturesIndenture Amendments”), as applicable, one or more offers ) to purchase, including any “Change certain of Control Offer” (as such term is defined the covenants contained in the applicable Indenture) and any tender offer, . Such offer to purchase and/or consent solicitation (individually or any exchange offer, and to conduct a consent solicitation, if any (each, a “Debt Offer” and collectively, the “Debt OffersOffer”) shall be made on such terms and conditions as are reasonably requested by Purchaser and agreed to by PFG (such agreement not to be unreasonably withheld); provided that, with respect to in any or all of the outstanding aggregate principal amount of the 2023 Senior Notesevent, the 2025 Senior Notes and the 2027 Senior Notes (collectively, the “Senior Notes”) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer shall be (A) in compliance with applicable Law, the terms of the Indentures and any other rights of any holder of the Senior Notes and the terms of this Section 5.17(b), (B) at the sole expense of Parent, (C) consummated using funds provided by Parent. Parent shall not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, offer to exchange, consent solicitation statement, letter of transmittal and press release, if any, in connection therewith and each other document relevant to such transaction that will be distributed by Parent to holders of the applicable Senior Notes in the applicable Debt Offer (collectively, the “Debt Offer Documents”) a period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel a reasonable opportunity to review and comment on the related Debt Offer Documents (in each case, at Parent’s sole expense), which comments shall be considered by Parent in good faith. Parent will reasonably consult with the Company regarding the material terms and conditions of any the Debt Offer (other than financial terms), including the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. Parent shall expressly condition provide that the closing (or, if applicable, effectiveness) of any of the Debt Offers on the occurrence of thereof shall be contingent upon the Closing, . It is expressly understood and the Company will use commercially reasonable efforts to cooperate with Parent, at Parent’s request and sole expense, to facilitate the initial settlement of the Debt Offers by Parent on the Closing Date; provided, agreed that the consummation of a Debt Offer with respect to any series of Senior Notes foregoing shall not be a condition to Closing and shall in no event delay or hinder the Closing. Parent PFG shall conduct waive any of the conditions to the Debt Offer and make any other changes in the terms and conditions of the Debt Offer as may be reasonably requested by Purchaser and PFG shall not, without Purchaser’s prior consent, waive any condition to the Debt Offer or make any changes to the terms and conditions of the Debt Offer, in each case except as required by applicable Law and subject to compliance with (and shall cause the terms of any Debt Offer shall comply with) any applicable provisions of the Indentures Indenture. PFG covenants and with applicable Lawagrees, subject to the terms and conditions of this Agreement and the receipt of the necessary funds from LNY pursuant to the immediately following sentence, including the SEC Regulatory Requirementsterms and conditions to the Debt Offer, to accept for payment, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the applicable Senior Notespay for, the applicable Senior Notes and effect the Indenture and SEC Regulatory Requirements. Subject to Section 5.17(b), at Parent’s expense, the Company shall, and shall cause the Company Subsidiaries and their respective representatives toAmendments, in each casecase contemporaneously with, use their reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with the Debt Offer; provided that prior to and contingent upon, the Closing, neither the Company nor in each case except as required by applicable Law and subject to compliance with any applicable provisions of the Company Subsidiaries, nor counsel for the Company shall be required to furnish any officer’s certificates, legal opinions or negative assurance letters in connection with the Debt Offers (other thanIndenture. Without, in connection any way limiting Section 5.14(d), LNY covenants and agrees to provide the necessary funds to effect the foregoing sentence. PFG agrees to enter into a customary dealer manager agreement and a customary information agent agreement with the execution of a supplemental indenture relating to any consent solicitation of the type described in clause (ii) below, the Company delivering customary officer’s certificates, dealer manager and using reasonable best efforts to cause counsel for the Company to deliver customary legal opinionsinformation agent, respectively, recommended by Purchaser (and reasonably acceptable to the trustee under the applicable Indentures, to the extent such certificates and opinions would not (in the opinion of the Company, its counsel and the applicable trustee) conflict with applicable Laws, the applicable terms of the Senior Notes or the Indentures and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in clause (ii) below. To the extent that the provisions of SEC Regulatory Requirements conflict with this Section 5.17(b)(iPFG), Parent and the Company shall comply with SEC Regulatory Requirements and shall not be deemed to have breached their obligations under this Agreement by such compliance. Notwithstanding the foregoing and for the avoidance of doubt, in no event shall the Company or its legal counsel be required to give an opinion with respect to the Financing or any other financing of Parent or Merger Sub.
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