Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents. (b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent. (c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period. (d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law. (e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed Debentures, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture. (f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone: (i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures and the aggregate principal amount of Remarketed Debentures sold in such Remarketing; (ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount of Remarketed Debentures such purchaser is to purchase; (iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; and (iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing. (g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement. (h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing. (i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 3 contracts
Samples: Purchase Contract and Pledge Agreement (American Electric Power Co Inc), Purchase Contract and Pledge Agreement (American Electric Power Co Inc), Purchase Contract and Pledge Agreement
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • [_______________________] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • [________________] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Early Remarketing during the Optional an Early Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. If the Remarketing Agent is unsuccessful on the first Early Remarketing Date during such Early Remarketing Period, a subsequent Remarketing shall be attempted (unless impracticable) by the Remarketing Agent on each of the two following Early Remarketing Dates in that Early Remarketing Period until a Successful Early Remarketing occurs. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Early Remarketing, as the Company may commence or postpone or cancel an Optional Early Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If In the case there is no Successful Optional Early Remarketing during the Optional any Early Remarketing Period or no Optional Early Remarketing occurs on any Optional Early Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each the Final Remarketing Date or Dates in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Final Remarketing Date in the Final Remarketing Period will be considered successful and no further attempts will be made if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to may not postpone the Final a Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of during the Final Remarketing Period.
(d) In connection with a each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the terms of the Notes, including those which may be modified in connection with the Remarketing pursuant to the Indenture, including the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the sole reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i1) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesNotes, other than to the Company, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii2) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter tothereafter) the DepositoryDepositary, the Purchase Contract Agent, the Collateral Agent and the CompanyCompany of any such Failed Remarketing. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset reset, and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the DepositoryDepositary, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined by the Debentures Remarketing Agent in such Remarketing and the aggregate principal amount number of Remarketed Debentures Notes sold in such Remarketing;
(ii2) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures Notes of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Notes such purchaser is to purchase;
(iii3) each such purchaser (if other than a Depository Depositary Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the DepositoryDepositary; and
(iv4) each such purchaser (or Depository Depositary Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units Units, shall be paid to the Collateral Agent in accordance with Section 5.02 or 5.03, as applicable, of the Purchase Contract and Pledge Agreement and (ii) with respect to the Separate Debentures, in each caseNotes, shall be applied paid to the Custodial Agent for payment to the holders of such Separate Notes in accordance with Section 5.02 or 5.03, as applicable, of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender tender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 2 contracts
Samples: Purchase Contract and Pledge Agreement (Johnson Controls Inc), Purchase Contract and Pledge Agreement (Johnson Controls Inc)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Early Remarketing during the Optional an Early Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. If the Remarketing Agent is unsuccessful on the first Early Remarketing Date during such Early Remarketing Period, a subsequent Remarketing shall be attempted (unless impracticable) by the Remarketing Agent on each of the two following Early Remarketing Dates in that Early Remarketing Period until a Successful Early Remarketing occurs. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Early Remarketing, as the Company may commence or postpone or cancel an Optional Early Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If In the case there is no Successful Optional Early Remarketing during the Optional any Early Remarketing Period or no Optional Early Remarketing occurs on any Optional Early Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each the Final Remarketing Date or Dates in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Final Remarketing Date in the Final Remarketing Period will be considered successful and no further attempts will be made if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to may not postpone the Final a Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of during the Final Remarketing Period.
(d) In connection with a each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the terms of the Notes, including those which may be modified in connection with the Remarketing pursuant to the Indenture, including the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the sole reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i1) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesNotes, other than to the Company, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii2) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter tothereafter) the DepositoryDepositary, the Purchase Contract Agent, the Collateral Agent and the CompanyCompany of any such Failed Remarketing. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset reset, and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the DepositoryDepositary, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined by the Debentures Remarketing Agent in such Remarketing and the aggregate principal amount number of Remarketed Debentures Notes sold in such Remarketing;
(ii2) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures Notes of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Notes such purchaser is to purchase;
(iii3) each such purchaser (if other than a Depository Depositary Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the DepositoryDepositary; and
(iv4) each such purchaser (or Depository Depositary Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units Units, shall be paid to the Collateral Agent in accordance with Section 5.02 or 5.03, as applicable, of the Purchase Contract and Pledge Agreement and (ii) with respect to the Separate Debentures, in each caseNotes, shall be applied paid to the Custodial Agent for payment to the holders of such Separate Notes in accordance with Section 5.02 or 5.03, as applicable, of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender tender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 2 contracts
Samples: Remarketing Agreement, Remarketing Agreement (Johnson Controls Inc)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Xxxxxx Xxxxxxx & Co. Incorporated as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] Xxxxxx Xxxxxxx & Co. Incorporated hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesSenior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Special Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence Redemption or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each the fifth Business Day immediately preceding the Purchase Contract Settlement Date (the “Initial Remarketing Date in the Final Remarketing PeriodDate”), the Remarketing Agent shall use its commercially reasonable efforts to remarket (“Initial Remarketing”) the Remarketed Debentures Senior Notes, at the applicable Remarketing Price.
(c) In the case of a Failed Remarketing on the Initial Remarketing Date and unless a Special Event Redemption or a Termination Event has occurred prior to such date, on the fourth Business Day immediately preceding the Purchase Contract Settlement Date (the “Second Remarketing Date”), the Remarketing Agent shall use its reasonable efforts to remarket (the “Second Remarketing”) the Remarketed Senior Notes at the Remarketing Price. In the case of a Failed Remarketing on the Second Remarketing Date and unless a Special Event Redemption or a Termination Event has occurred prior to such date, on the third Business Day immediately preceding the Purchase Contract Settlement Date (the “Final Remarketing Date”), the Remarketing Agent shall use its reasonable efforts to remarket (the “Final Remarketing”) the Remarketed Senior Notes at the Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful and no further attempts will be made if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Senior Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Senior Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the sole reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Senior Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i1) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesSenior Notes, other than to the Company, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii2) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDepositary, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the DepositoryDepositary, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined by the Debentures Remarketing Agent in such Remarketing and the aggregate principal amount number of Remarketed Debentures Senior Notes sold in such Remarketing;
(ii2) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures Senior Notes of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Senior Notes such purchaser is to purchase;
(iii3) each such purchaser (if other than a Depository Depositary Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Senior Notes purchased through the facilities of the DepositoryDepositary; and
(iv4) each such purchaser (or Depository Depositary Participant thereof) that the Remarketed Debentures Senior Notes will not be delivered until the Remarketing Settlement Date, and, in the case of the Initial Remarketing Date or the Second Remarketing, the Remarketing Settlement Date will be five Business Days or four Business Days, respectively, following the date of such Remarketing and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Senior Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Senior Notes underlying the Applicable Ownership Interests in Debentures Senior Notes that are components of the Corporate Units Units, shall be paid to the Collateral Agent in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement and (ii) with respect to the Separate Debentures, in each caseSenior Notes, shall be applied paid to the Custodial Agent for payment to the holders of such Separate Senior Notes in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) The right of each holder of Remarketed Senior Notes to have such Remarketed Senior Notes remarketed and sold on any Remarketing Date shall be subject to the conditions that (i) the Remarketing Agent conducts (A) an Initial Remarketing, (B) a Second Remarketing in the event of a Failed Remarketing on the Initial Remarketing Date and (C) a Final Remarketing in the event of a Failed Remarketing on the Second Remarketing Date, each pursuant to the terms of this Agreement, (ii) neither a Special Event Redemption nor a Termination Event has occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price based on the Reset Rate, and (iv) such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agent as and when required.
(i) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesSenior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender tender of Remarketed Debentures Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures Senior Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 2 contracts
Samples: Remarketing Agreement (Genworth Financial Inc), Remarketing Agreement (Genworth Financial Inc)
Appointment and Obligations of the Remarketing Agent. (a) The Company and the Trust (together, the “Issuers”) hereby appoints [ • ] appoint Barclays as exclusive remarketing agent (the exclusive “Remarketing Agent”), and, subject to the terms and conditions set forth herein, [ • ] Barclays hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Remarketing Securities on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior The Remarketing Agent agrees to:
(i) use its commercially reasonable efforts to such date, if remarket the Company elects Remarketing Securities deemed tendered to conduct an Optional the Remarketing during Agent in the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge AgreementRemarketing Procedures;
(ii) notify the Issuers promptly of the Reset Rate; and
(iii) carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures.
(c) On the third Business Day immediately preceding the Remarketing Settlement Date (the “Remarketing Date”), the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Remarketing Securities, at a price at least equal to:
(i) 100% of the applicable aggregate Accreted Value thereof as of the end of the day on the day next preceding the Remarketing Price. For Settlement Date; or
(ii) on the avoidance Maturity Remarketing Date, 100% of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketingstated liquidation amount of the Preferred Securities or the principal amount at maturity of the Debentures, as the Company case may commence or postpone or cancel an Optional be.
(d) If, as a result of the efforts described in Section 1(b), the Remarketing Agent determines that it will be able to remarket all Remarketing Securities deemed tendered for purchase at the purchase price set forth in its absolute and sole discretion. In Section 1(c) prior to 4:00 p.m. (New York City time) on the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify determine the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury PortfolioReset Rate, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread ) that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent reasonably determines, in good faith after consultation with the Company, to be the lowest distribution rate or interest rate, as applicable, per annum that will enable it to remarket all Remarketing Securities deemed tendered for Remarketing. In the event of a Remarketing:
(i) in connection with a Remarketing upon a Trading Remarketing Event or a Legal Cause Remarketing Event, the Accreted Value of the Remarketed Debentures at no less than as of the applicable end of the day on the day next preceding the Remarketing Price Settlement Date shall become due on the date which is 93 days following the Remarketing Settlement Date, and, as a result, the Accreted Value of the Preferred Securities as of the end of the day on the day next preceding the Remarketing Settlement Date shall be redeemed on the date which is 93 days following the Remarketing Settlement Date;
(ii) in such Remarketing; provided that such connection with a Remarketing upon a Trading Remarketing Event or a Legal Cause Remarketing Event, on the Remarketing Settlement Date, the rate of interest per annum on the Accreted Value of the Debentures shall become the Reset Rate on the Accreted Value of the Preferred Securities that is determined pursuant to the Remarketing of the Preferred Securities, and, as a result, the Distribution rate per annum on the Accreted Value of the Preferred Securities shall not exceed become the maximum Reset Rate established in the Remarketing of the Preferred Securities;
(iii) as of the Remarketing Settlement Date, interest rate permitted by applicable lawaccrued and unpaid on the Debentures from and including the immediately preceding Interest Payment Date to, but excluding, the Remarketing Settlement Date shall be payable to the holders of the Debentures on the Special Record Date and, as a result, Distributions accumulated and unpaid on the Preferred Securities from and including the immediately preceding Distribution Date to, but excluding, the Remarketing Settlement Date shall be payable to the Holders of the Preferred Securities on the Special Record Date (as defined in the Trust Agreement); and
(iv) in connection with a Remarketing upon a Trading Remarketing Event or a Legal Cause Remarketing Event, the Company shall be obligated to redeem the Warrants on the Remarketing Settlement Date at a redemption price per Warrant equal to the Warrant Redemption Amount as of the end of the day on the day next preceding the Remarketing Date.
(e) If none of the holders of Remarketing Securities elects to have Remarketing Securities remarketed in the Remarketing, the Remarketing Agent shall reasonably determine, in good faith after consultation with the Company, the distribution rate or interest rate, as applicable, that would have been established had a Remarketing been held on the Remarketing Date, and such rate shall be the Reset Rate, and the related modifications to the other terms of the Preferred Securities and to the terms of the Debentures and the Warrants shall be effective as of the Remarketing Date.
(f) If, by 4:00 p.m., p.m. (New York City time, ) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesRemarketing Securities deemed tendered for purchase, at a price not less than the applicable failed Remarketing Price pursuant (a “Failed Remarketing”) shall be deemed to the terms have occurred, and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall so advise by telephone (and promptly deliver a notice confirmed in writing thereafter towriting) the DepositoryThe Depository Trust Company (“DTC”), the Purchase Contract AgentProperty Trustee, the Collateral Agent Debenture Trustee, the Administrative Trustees and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing:
(i) beginning on the third Business Day after the Failed Remarketing Date, interest will accrue on the Accreted Value of the Debentures (which in connection with the expiration of the Warrants is $50), and Distributions will accumulate on the Accreted Value of the Preferred Securities at the rate described in clause (iii) below;
(ii) the Accreted Value of all outstanding Debentures as of the end of the day on the day next preceding the Remarketing Settlement Date shall become due on the date which is 93 days following the Failed Remarketing Settlement Date, and, as a result, the applicable interest rate Accreted Value of the Preferred Securities as of the end of the day on the day next preceding the Remarketing Settlement Date shall be redeemed on the date which is 93 days following the Remarketing Settlement Date with respect to such Failed Remarketing;
(iii) the rate of interest per annum on the Accreted Value of the Debentures will not shall become 10.25% per annum, and, as a result, the rate of Distribution per annum on the Accreted Value of the Preferred Securities shall become 10.25% per annum, which shall accrue and be reset and will continue to be the Coupon Rate set forth payable as provided in the Supplemental Trust Agreement; and
(iv) pursuant to the Indenture, the Company no longer shall have the option to defer payments of interest on the Debentures.
(fg) In the event of a Successful Remarketing, by By approximately 4:30 p.m., p.m. (New York City time, ) on the applicable Remarketing Date, provided that there has not been a Failed Remarketing, the Remarketing Agent shall advise, by telephone:telephone (promptly confirmed in writing):
(i) the DepositoryDTC, the Purchase Contract Agent, the Property Trustee, the Collateral Agent, the Custodial Agent Debenture Trustee and the Company (and promptly deliver a notice in writing to such Persons thereafter) Issuers of the Reset Rate with respect to determined in the Debentures Remarketing and the number of Remarketing Securities (or, if applicable, aggregate principal amount of Remarketed Debentures Remarketing Securities) sold in such the Remarketing;,
(ii) each purchaser (or the Depository Participant thereoftheir DTC participant) of Remarketed Debentures of the Reset Rate and the number of Remarketing Securities (or, if applicable, aggregate principal amount of Remarketed Debentures Remarketing Securities) such purchaser is to purchase;; and
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant DTC participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Remarketing Securities purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the RemarketingDTC.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 2 contracts
Samples: Remarketing Agreement (Reinsurance Group of America Inc), Remarketing Agreement (Reinsurance Group of America Inc)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Early Remarketing during the Optional an Early Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. If the Remarketing Agent is unsuccessful on the first Early Remarketing Date during such Early Remarketing Period, a subsequent Remarketing shall be attempted (unless impracticable) by the Remarketing Agent on each of the two following Early Remarketing Dates in that Early Remarketing Period until a Successful Early Remarketing occurs. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Early Remarketing, as the Company may commence or postpone or cancel an Optional Early Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If In the case there is no Successful Optional Early Remarketing during the Optional any Early Remarketing Period or no Optional Early Remarketing occurs on any Optional Early Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each the Final Remarketing Date or Dates in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Final Remarketing Date in the Final Remarketing Period will be considered successful and no further attempts will be made if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to may not postpone the Final a Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of during the Final Remarketing Period.
(d) In connection with a each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the terms of the Notes, including those which may be modified in connection with the Remarketing pursuant to the Indenture, including the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the sole reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i1) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesNotes, other than to the Company, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii2) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter tothereafter) the DepositoryDepositary, the Purchase Contract Agent, the Collateral Agent and the CompanyCompany of any such Failed Remarketing. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset reset, and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the DepositoryDepositary, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined by the Debentures Remarketing Agent in such Remarketing and the aggregate principal amount number of Remarketed Debentures Notes sold in such Remarketing;
(ii2) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures Notes of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Notes such purchaser is to purchase;
(iii3) each such purchaser (if other than a Depository Depositary Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the DepositoryDepositary; and
(iv4) each such purchaser (or Depository Depositary Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units Units, shall be paid to the Collateral Agent in accordance with Section 5.02 or 5.03, as applicable, of the Purchase Contract and Pledge Agreement and (ii) with respect to the Separate Debentures, in each caseNotes, shall be applied paid to the Custodial Agent for payment to the holders of such Separate Notes in accordance with Section 5.02 or 5.03, as applicable, of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender tender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 2 contracts
Samples: Purchase Contract and Pledge Agreement (Johnson Controls Inc), Remarketing Agreement (Johnson Controls Inc)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Credit Suisse First Boston as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] Credit Suisse First Boston hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures on behalf of the holders thereof, Holders thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures (the procedures in connection with the Remarketing of the Debentures described in the Indenture, the Purchase Contract Agreement and the Pledge Agreement), all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the The Remarketing Agent shall agrees (i) to use its commercially reasonable efforts to remarket the Remarketed Debentures at tendered or deemed tendered to the applicable Remarketing Price. For Agent in the avoidance of doubtRemarketing, (ii) to notify the Company shall determine of the Interest Rate, and (iii) to carry out such other duties as are assigned to the Remarketing Agent in its sole discretion if and when to attempt an Optional Remarketingthe Remarketing Procedures, as all in accordance with the Company may commence or postpone or cancel an Optional provisions of the Remarketing in its absolute and sole discretion. In Procedures.
(c) On the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures remarket, at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least a price equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days 100.50% of the Final Remarketing Periodprincipal amount thereof, the Debentures tendered or deemed tendered for purchase.
(d) In connection with a If none of the Holders of Units elects to have their Debentures remarketed in the Remarketing, the Remarketing Agent shall determinedetermine the Interest Rate, in consultation with its sole discretion, which shall be the Companyrate that would have been established had a remarketing been held on the Remarketing Date.
(e) If, as a result of the efforts described in Section 2(b), the Remarketing Agent determines that it will be able to remarket all of the Debentures tendered or deemed tendered for purchase at a price of 100.50% of their aggregate principal amount prior to 4:00 p.m., New York City time, on the Remarketing Date, the Remarketing Agent shall determine the Interest Rate, which shall be (i) the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread ) that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent determines, in its sole judgment, to be the lowest rate per annum that will enable it to remarket at that price all of the Remarketed Debentures at no less than the applicable Remarketing Price in such tendered or deemed tendered for Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(ef) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesDebentures tendered or deemed tendered for purchase, at a price not less than the applicable Remarketing Price pursuant "Failed Remarketing" shall be deemed to the terms have occurred, and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall so advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDepositary, the Purchase Contract AgentCompany, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing AgentTrustee. In the event of a Failed Remarketing, the applicable interest rate on Interest Rate shall equal (i) the Debentures will not be reset and will continue to be Two-Year Benchmark Treasury Rate plus (ii) the Coupon Rate set forth in the Supplemental IndentureApplicable Margin.
(fg) In the event of a Successful Remarketing, by By approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, provided that there has not been a Failed Remarketing, the Remarketing Agent shall advise, advise by telephone:
telephone (i) the DepositoryDepositary, the Purchase Contract AgentCompany, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) Trustee of the Reset Interest Rate with respect to determined in the Debentures Remarketing and the aggregate principal amount of Remarketed the Debentures sold in such the Remarketing;
, (ii) each purchaser (or the Depository Participant thereofDepositary participant of a purchaser) of Remarketed Debentures of the Reset Interest Rate and the aggregate principal amount of Remarketed Debentures such purchaser is to purchase;
, and (iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant Depositary participant to pay the purchase price Purchase Price on the Remarketing Purchase Contract Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; andDepositary.
(ivh) each such purchaser (or Depository Participant thereof) that Subject to Section 4 of this Agreement, the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by remit to the Securities Act, deliver, in conformity with the requirements Collateral Agent all of the Securities Act, to each purchaser a Prospectus in connection with Proceeds of the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect of the Debentures subject to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(hi) It is understood and agreed that the The Remarketing Agent shall is not have any obligation whatsoever obligated to purchase any Remarketed Debentures, whether Debentures that otherwise would remain unsold in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this AgreementRemarketing. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures for Remarketing.
(ij) Notwithstanding anything The tender and settlement procedures set forth in Article 7 of the Supplemental Indenture, including provisions for payment by purchasers of the Debentures in the Remarketing, shall be subject to modification to the contrary hereinextent required by the Depositary or, it if the book-entry system is understood and agreed that in connection with any no longer available for the Debentures at the time of the Remarketing, to facilitate the Company may electtendering and remarketing of the Debentures in certificated form. In addition, in consultation with the Remarketing Agent to, among other things, remarket may modify the Debentures as fixed-rate notes or floating-rate notes and, settlement procedures set forth in Article 7 of the case of floating-rate notes, provide that Supplemental Indenture in order to facilitate the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate)settlement process.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • [—] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • [—] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two three Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed DebenturesNotes, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures Notes and the aggregate principal amount of Remarketed Debentures Notes sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures Notes of the Reset Rate and the aggregate principal amount of Remarketed Debentures Notes such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units and (ii) with respect to the Separate DebenturesNotes, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Laclede Group Inc)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • [—] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • [—] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Sixth Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two three Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed DebenturesNotes, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset and will continue to be the Coupon Rate set forth in the Sixth Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures Notes and the aggregate principal amount of Remarketed Debentures Notes sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures Notes of the Reset Rate and the aggregate principal amount of Remarketed Debentures Notes such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units and (ii) with respect to the Separate DebenturesNotes, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Dominion Resources Inc /Va/)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Citi as the exclusive initial Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] Citi hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Securities on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, establishing the Reset Rate (as defined below) for the DebenturesSecurities in connection with the Remarketing, and (iii) performing such other duties as are assigned to the Remarketing Agent Agents in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior The Remarketing Agents agree (i) to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at Securities tendered or deemed tendered to the applicable Remarketing Price. For Agents in the avoidance of doubtRemarketing, (ii) to establish the Reset Rate in accordance with the Remarketing Procedures and to notify the Company, the Company shall determine Depositary and the Trustee promptly of the Reset Rate, and (ii) to carry out such other duties as are assigned to the Remarketing Agents in its sole discretion if and when to attempt an Optional Remarketingthe Remarketing Procedures, as all in accordance with the Company may commence or postpone or cancel an Optional provisions of the Remarketing in its absolute and sole discretion. In Procedures.
(c) On the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent Agents shall notify the Companyuse their commercially reasonable efforts to remarket, the Collateral Agent and the Quotation Agent at a price which results in proceeds, net of the amount and issue fee described in Section 1(j), equal to at least 100% of the U.S. Treasury securities (or aggregate principal or interest strips thereof) that will constitute the Treasury Portfolioamount, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract plus accrued and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Dateunpaid interest, if any, and unless a Termination Event has occurred prior to such date, on each the Remarketing Settlement Date in (the Final “Remarketing PeriodPrice”), the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing PeriodSecurities tendered or deemed tendered for purchase.
(d) In connection with If, as a Remarketingresult of the efforts described in Section l(b), the Remarketing Agent Agents determine that they will be able to remarket all Remarketed Securities tendered or deemed tendered for purchase at the Remarketing Price by 4:00 P.M., New York City time, on the Remarketing Date (a “Successful Remarketing”), the Remarketing Agents shall determine, in consultation with the Company, determine the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annumpercent, or, if which will apply to all Securities (whether or not the Company elects to remarket holders thereof participate in the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear Remarketing) (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Securities tendered or deemed tendered for Remarketing; provided that provided, however, that, unless such requirement has been validly waived by the Company, the Reset Rate shall may not exceed the maximum interest rate permitted prevailing market yield, as determined by applicable lawthe Remarketing Agents, of the benchmark U.S. treasury security having a remaining maturity that most closely corresponds to the period from the Remarketing Settlement Date until the Stated Maturity of the Securities (after giving effect to the change in the Stated Maturity of the Securities on the Remarketing Settlement Date pursuant to the Notice), plus 350 basis points per annum; provided, further, that the Reset Rate may not be less than 0% per annum.
(e) If, by 4:00 p.m.P.M., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is Agents are unable to Remarket remarket all of the Remarketed DebenturesSecurities tendered or deemed tendered for purchase, at a price not less than the applicable Failed Remarketing Price pursuant shall be deemed to the terms have occurred, and conditions hereof or (ii) the Remarketing did not occur Agents shall, on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfieddate, the Remarketing Agent shall so advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent Trustee, the Company and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Collateral Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Failed Remarketing, by the Remarketing Agents shall promptly remit (i) to the Custodial Agent the Remarketed Securities, if any, that are no longer a component of the Units (“Separate Securities”), and (ii) to the Collateral Agent the balance of the Remarketed Securities.
(g) By approximately 4:30 p.m.P.M., New York City time, on the applicable Remarketing Date, provided that there has not been a Failed Remarketing, the Remarketing Agent Agents shall advise, by telephone:
(i) , the DepositoryCompany, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent Depositary and the Company (Trustee that the Remarketing was successful and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined in the Debentures Remarketing and the aggregate principal amount of Remarketed Debentures Securities sold in such the Remarketing;.
(iih) In accordance with the Depositary’s normal procedures, on the Remarketing Settlement Date, the transactions described above with respect to each purchaser (or Security tendered for purchase and sold in the Depository Participant thereof) of Remarketed Debentures Remarketing shall be executed through the Depositary, and the accounts of the Reset Rate respective Depositary participants shall be debited and credited and such Securities delivered by book-entry as necessary to effect purchases and sales of such Securities.
(i) On the Remarketing Settlement Date, the tender and settlement procedures set forth in this Section 1, including provisions for payment by purchasers of the Remarketed Securities in the Remarketing, shall be subject to modification to the extent required by the Depositary or, if the book-entry system is no longer available for the Remarketed Securities at the time of the Remarketing, to facilitate the tendering and remarketing of the Remarketed Securities in certificated form. In addition, the Remarketing Agents may modify the settlement procedures set forth herein in order to facilitate the settlement process.
(j) On the Remarketing Settlement Date, the Remarketing Agents shall retain as a remarketing fee an amount to be specified in the Pricing Agreement (as defined below) and shall remit (i) to the extent such proceeds relate to Remarketed Securities that are components of the Units, to the Purchase Contract Agent up to the aggregate principal amount of such Remarketed Debentures such purchaser is Securities, (ii) the portion of the balance attributable to purchase;
the Separate Securities to the holders of the Separate Securities that were remarketed and (iii) each such purchaser (if other than a Depository Participant) the remaining portion of the balance to give instructions the Purchase Contract Agent for distribution to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery holders of the Remarketed Debentures purchased through Securities in accordance with the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures Purchase Contract Agreement. Holders whose Securities are remarketed pursuant to this Remarketing Agreement will not otherwise be delivered until responsible for the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time payment of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus remarketing fee in connection with the Remarketingtherewith.
(gk) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components If fewer than all of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied Remarketed Securities are remarketed in accordance with Section 5.02 the terms hereof, the Remarketing shall be deemed to have failed as to all Remarketed Securities.
(l) If at any time during the term of this Remarketing Agreement, any Event of Default (as defined in the Indenture) or event that with the passage of time or the giving of notice or both would become such an Event of Default has occurred and is continuing under the Indenture, then the obligations and duties of the Remarketing Agents under this Remarketing Agreement shall be suspended until such default or event has been cured. The Company will promptly cause the Trustee, the Purchase Contract Agent and Pledge Agreement.
(h) It is understood and agreed that the Collateral Agent to give the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing Agents notice of all such defaults and events of which such trustee or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketingagent is aware.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Remarketing Agreement (Metlife Inc)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • [Underwriters' Representative] as exclusive remarketing agent (the exclusive "Remarketing Agent"), and, subject to the terms and conditions set forth herein, [ • [Underwriters' Representative] hereby accepts appointment as Remarketing Agent, for the purpose of (i1) remarketing the Remarketing Remarketed Debentures Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, thereof and (iii2) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the The Remarketing Agent shall agrees to (1) use its commercially reasonable efforts to remarket the Remarketed Debentures at Senior Notes tendered or deemed tendered to the applicable Remarketing Price. For Agent in the avoidance Remarketing, (2) provide prompt notice of doubtthe Reset Rate as set forth in this Agreement and (3) carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures.
(c) On the third Business Day immediately preceding the Purchase Contract Settlement Date (the "Remarketing Date"), the Company Remarketing Agent shall determine in its sole discretion if and when use commercially reasonable efforts to attempt an Optional Remarketingremarket, at a price equal to ___% of the aggregate principal amount thereof, the Remarketed Senior Notes tendered or deemed tendered for purchase.
(d) If, as a result of the Company may commence efforts described in Section 2(b), the Remarketing Agent determines that it will be able to remarket all Remarketed Senior Notes tendered or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In deemed tendered for purchase at a price of ___% of the case aggregate principal amount of an Optional Remarketing, such Remarketed Senior Notes prior to 4:00 p.m. (New York City time) on any the Remarketing Date, the Remarketing Agent shall notify determine the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury PortfolioReset Rate, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread ) that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent determines, in its sole judgment, to be the lowest rate per annum that will enable it to remarket all of Remarketed Senior Notes tendered or deemed tendered for Remarketing at the Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable lawaforementioned purchase price.
(e) IfUpon receipt of the proceeds from the Remarketing, by 4:00 p.m.the Remarketing Agent shall:
(1) remit to the Collateral Agent the portion of the proceeds from the Remarketing of the Remarketed Senior Notes subject to the Pledge Agreement equal to ___% of the Principal Amount of such Remarketed Senior Notes;
(2) remit to the Holders of Remarketed Senior Notes not subject to the Pledge Agreement the portion of the proceeds from the Remarketing equal to ___% of the Principal Amount of such Remarketed Senior Notes, and
(3) retain an amount equal to __% of the Principal Amount for the performance of its services as Remarketing Agent hereunder.
(f) If none of the holders of Remarketed Senior Notes elects, or is deemed to have elected, to have Remarketed Senior Notes remarketed in the Remarketing, the Remarketing Agent shall, in its sole discretion after consultation with the Company, determine the rate that would have been established had a Remarketing been held on the Remarketing Date, and such rate shall be the Reset Rate. By approximately 4:30 p.m. (New York City time, ) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed Debentures, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice confirmed in writing thereafter towriting) the DepositoryDepositary, the Indenture Trustee and the Company of such Reset Rate.
(g) If, by 4:00 p.m. (New York City time) on the Remarketing Date, the Remarketing Agent is unable to remarket all Remarketed Senior Notes tendered or deemed tendered for purchase, a failed Remarketing ("Failed Remarketing") shall be deemed to have occurred, and the Remarketing Agent shall so advise by telephone (promptly confirmed in writing) the Depositary, the Purchase Contract Agent, the Collateral Agent Indenture Trustee and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate Reset Rate shall be equal to the Two-Year Benchmark Rate plus the Applicable Spread and, by approximately 4:30 p.m. (New York City time) on the Debentures will not be reset Remarketing Date, the Remarketing Agent shall advise by telephone (promptly confirmed in writing) the Depositary, the Indenture Trustee and will continue to be the Coupon Rate set forth in the Supplemental IndentureCompany of such Reset Rate.
(fh) In the event of Provided that there has not been a Successful Failed Remarketing, by approximately 4:30 p.m., p.m. (New York City time), on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:telephone (promptly confirmed in writing in the case of clause (1)):
(i1) the DepositoryDepositary, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent Indenture Trustee and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined in the Debentures Remarketing and the aggregate principal amount number of Remarketed Debentures Senior Notes sold in such the Remarketing;
(ii2) each purchaser (or the Depository Clearing Agency Participant thereof) of Remarketed Debentures Senior Notes of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Senior Notes such purchaser is to purchase;; and
(iii3) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Clearing Agency Participant to pay the purchase price on the Remarketing Purchase Contract Settlement Date in same day immediately available funds against delivery of the Remarketed Debentures Senior Notes purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the RemarketingDepositary.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Remarketing Agreement (Dominion Resources Capital Trust Iv)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders Holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. For the avoidance of doubt, ; provided that the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as and the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two three Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed DebenturesNotes, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures and the aggregate principal amount of Remarketed Debentures sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount of Remarketed Debentures such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Black Hills Corp /Sd/)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • — ] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • — ] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two three Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures Notes as floating-rate Debentures Notes as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed DebenturesNotes, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures Notes and the aggregate principal amount of Remarketed Debentures Notes sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures Notes of the Reset Rate and the aggregate principal amount of Remarketed Debentures Notes such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units and (ii) with respect to the Separate DebenturesNotes, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things: (1) move up the stated Maturity of the Notes to a date earlier than June 1, 2024 but not earlier than June 1, 2020; (2) to cause the Notes to cease to be redeemable at the Company’s option, and the provisions under Article III and Article IV of the Base Indenture to no longer apply to the Notes and (3) remarket the Debentures Notes as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures Notes shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures Notes may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Exelon Corp)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Citi as the exclusive initial Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] Citi hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Securities on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, ii)establishing the Reset Rate (as defined below) for the DebenturesSecurities in connection with the Remarketing, and (iii) performing iii)performing such other duties as are assigned to the Remarketing Agent Agents in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional The Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall Agents agree (i)to use its commercially reasonable efforts to remarket the Remarketed Debentures at Securities tendered or deemed tendered to the applicable Remarketing Price. For Agents in the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as (ii)to establish the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion Reset Rate in accordance with the Purchase Contract Remarketing Procedures and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Sponsor, the Institutional Trustee, the Trustee and the Stock Purchase Contract Agent promptly of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on Reset Rate, and (ii)to carry out such Remarketing Date. If the Remarketing Agent is also acting other duties as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein are assigned to the Remarketing AgentAgents in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures.
(c) If there is no Successful Optional Remarketing during During the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing PeriodInitial Remarketing, the Remarketing Agent Agents shall use its their commercially reasonable efforts to remarket remarket, at a price which results in proceeds, net of the Remarketing Agent’s Fee as described in Section 1(j), equal to at least 100% of the Remarketing Value (the “Remarketing Price”), the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing PeriodSecurities tendered or deemed tendered for purchase.
(d) In connection with If, as a Remarketingresult of the efforts described in Section 1(b), the Remarketing Agent Agents determine that they will be able to remarket all Remarketed Securities tendered or deemed tendered for purchase at the Remarketing Price by 4:00 P.M., New York City time, on any Remarketing Date (a “Successful Remarketing”), the Remarketing Agents shall determine, in consultation with the Company, their sole discretion determine the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annumpercent, or, if which will apply to all Securities (whether or not the Company elects to remarket holders thereof participate in the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear Remarketing) (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Securities tendered or deemed tendered for Remarketing; provided provided, however, that such the Reset Rate shall may not exceed the maximum interest rate permitted by applicable lawReset Cap and may not be less than 0% per annum.
(e) If, by 4:00 p.m.P.M., New York City time, on the applicable Remarketing Date, (i) last date in the Remarketing Agent is unable to Remarket all of the Remarketed Debentures, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfiedInitial Remarketing, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryAgents are unable to remarket all Remarketed Securities tendered or deemed tendered for purchase, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or remarketing shall be not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental IndentureSuccessful.
(f) In the event of a Successful Remarketing, by By approximately 4:30 p.m.P.M., New York City time, on the applicable Remarketing Date, the Remarketing Agent Agents shall advise, by telephone:
(i) notify the DepositorySponsor, the Institutional Trustee (if applicable), the Trustee and the Stock Purchase Contract Agent, Agent that the Trustee, the Collateral Agent, the Custodial Agent Remarketing was a Successful Remarketing and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures and the aggregate principal amount of Remarketed Debentures sold determined in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount of Remarketed Debentures such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful In accordance with the Depositary’s normal procedures, on the Remarketing (i) Settlement Date, the transactions described above with respect to each Security tendered or deemed tendered for purchase and sold in the Debentures underlying Remarketing shall be executed through the Applicable Ownership Interests in Debentures that are components Depositary, and the accounts of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, respective Depositary participants shall be applied in accordance with Section 5.02 debited and credited and such Securities delivered by book-entry as necessary to effect purchases and sales of the Purchase Contract and Pledge Agreementsuch Securities.
(h) It is understood and agreed that On the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesSettlement Date, whether the tender and settlement procedures set forth in the Remarketing or otherwisethis Section 1, and shall in no way be obligated to provide funds to make including provisions for payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender by purchasers of the Remarketed Debentures Securities in the Remarketing, shall be subject to modification to the extent required by the Depositary or, if the book-entry system is no longer available for the Remarketed Securities at the time of the Remarketing, to facilitate the tendering and remarketing of the Remarketed Securities in certificated form. In addition, the Remarketing Agents may modify the settlement procedures set forth herein in order to facilitate the settlement process.
(i) Notwithstanding anything On the Remarketing Settlement Date, the Remarketing Agents shall retain as a remarketing fee an amount to be as agreed among the Sponsor, the Trust (if applicable) and the Remarketing Agents and specified in the Pricing Agreement (the “Remarketing Agent’s Fee”) and shall remit any proceeds remaining after such deduction as provided for in the Remarketing Procedures. Holders whose Securities are remarketed pursuant to this Remarketing Agreement will not otherwise be responsible for the payment of any remarketing fee in connection therewith.
(j) On any day during the Initial Remarketing other than the last day of the Initial Remarketing, the Sponsor may, in its absolute discretion (and without prior notice being given to holders of Securities or the DECS), postpone the Remarketing until the following Business Day by giving notice of such postponement to the contrary hereinRemarketing Agents in accordance with this Remarketing Agreement.
(k) If fewer than all of the Remarketed Securities are remarketed in accordance with the terms hereof, it is understood and agreed that the Remarketing shall be deemed to have failed as to all Remarketed Securities.
(l) The Remarketing Agents hereby agree in connection with the remarketing of the Remarketed Securities to comply with the requirements set forth in any Remarketingapplicable sections of Rule 5121 of the Financial Industry Regulatory Authority, Inc.
(m) If at any time during the term of this Remarketing Agreement, any Event of Default (as defined in the Indenture) or event that with the passage of time or the giving of notice or both would become such an Event of Default has occurred and is continuing under the Indenture, then the obligations and duties of the Remarketing Agents under this Remarketing Agreement shall be suspended until such default or event has been cured. The Company will promptly cause the Trustee, the Company may elect, in consultation with Stock Purchase Contract Agent and the Collateral Agent to give the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case Agents notice of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year all such defaults and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate)events.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] as the exclusive Remarketing Agent], and, subject to the terms and conditions set forth herein, [ • ] hereby accepts appointment as Remarketing Agentsuch appointment, for the purpose of (i) remarketing as the Remarketed Debentures on behalf of Remarketing Agent to determine the holders thereof, (ii) determining, in consultation with the Company, Reset Rate in the manner provided for herein and in the Purchase Contract and Pledge Agreement Indenture and the Supplemental IndentureSQUARZ Agreement (as in effect on the date of this Remarketing Agreement) with respect to the Notes, the which Reset Rate for shall, if applicable, not exceed the Debenturesmaximum rate permitted by applicable law, and (iiiii) performing such other duties as are assigned the exclusive Remarketing Agent (subject to the right of such Remarketing Agent to appoint additional remarketing agents hereunder as described below) to remarket the Notes to be included in the Transaction DocumentsRemarketing on the Remarketing Date.
(b) Unless a Termination Event has occurred prior to such date, if the The Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, agrees that the Remarketing Agent shall use its commercially reasonable efforts to remarket have the Remarketed Debentures at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketingright, on any Remarketing Date, the Remarketing Agent shall notify 15 Business Days notice to the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (to appoint one or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on more additional remarketing agents so long as any such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent additional remarketing agents shall be entitled reasonably acceptable to all rightsthe Company; provided, protections and privileges granted herein that, such appointment(s) shall not require the Company to pay, in the aggregate, a remarketing fee, whether to the Remarketing Agent, any such additional remarketing agent or otherwise, in excess of the remarketing fee payable by the Company to the Remarketing Agent under Section 4. Upon any such appointment, the parties shall enter into an appropriate amendment to this Agreement to reflect the addition of any such additional remarketing agent(s).
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed Debentures, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures and the aggregate principal amount of Remarketed Debentures sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount of Remarketed Debentures such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwiseNotes, and shall in no way be obligated to provide funds to make payment upon surrender tender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its their own funds or incur or to be exposed to financial liability in the performance of its their respective duties under this Agreement. Neither Except for its obligations to repurchase the Notes pursuant to the Indenture, the Company nor the Remarketing Agent shall not be obligated in any case event to provide funds to make payment to the holders thereof upon surrender delivery of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company and [Capital Funding] [the Trust] hereby appoints [ • ] appoint as exclusive remarketing agent (the exclusive “Remarketing Agent”), and, subject to the terms and conditions set forth herein, [ • ] hereby (1) accepts appointment as Remarketing Agent, for the purpose of (iA) remarketing the Remarketing Remarketed Debentures Securities on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, thereof and (iiiB) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures, and (2) accepts and will perform all obligations of the Remarketing Agreement set forth in the [Trust Agreement,] [Officers’ Certificate,] the Pledge Agreement and the Purchase Contract Agreement.
(b) Unless a Termination Event has occurred prior The Remarketing Agent agrees to such date(1) use reasonable efforts to remarket the Remarketed Securities tendered or deemed tendered to the Remarketing Agent in the Remarketing, if (2) notify the Company elects promptly of the Reset Rate and (3) carry out such other duties as are assigned to conduct an Optional the Remarketing during Agent in the Optional Remarketing Period selected by Procedures, all in accordance with the Company pursuant to provisions of the Remarketing Procedures.
(c) On the third Business Day immediately preceding the Purchase Contract and Pledge AgreementSettlement Date (the “Remarketing Date”), the Remarketing Agent shall use its commercially reasonable efforts to remarket remarket, at a price at least equal to [100.25%] of the Stated Amount, the Remarketed Debentures at Securities tendered or deemed tendered for purchase.
(d) If, as a result of the applicable Remarketing Price. For the avoidance of doubtefforts described in Section 2(b), the Company shall determine in its sole discretion if and when Remarketing Agent determines that it will be able to attempt an Optional Remarketing, as remarket all Remarketed Securities tendered or deemed tendered for purchase at a price at least equal to [100.25%] of the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In Stated Amount prior to 4:00 p.m. (New York City time) on the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify set the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless Reset Rate at a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread ) that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent determines to be the lowest rate per annum that will enable it to remarket all of the Remarketed Debentures Securities tendered or deemed tendered for purchase at no less than a price equal to [100.25%] of the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable lawStated Amount.
(e) upon receipt of the proceeds from the Remarketing, the Remarketing Agent shall:
(1) retain [25 basis points (.25%)] of the Stated Amount for the performance of its services as Remarketing Agent hereunder; and
(2) remit to the Collateral Agent all excess proceeds of the Remarketed Securities subject to the Pledge Agreement.
(f) If none of the holders of Remarketed Notes elects to have Remarketed Securities remarketed in the Remarketing, the Remarketing Agent shall determine the rate that would have been established had a Remarketing been held on the Remarketing Date, and such rate shall be the Reset Rate.
(g) If, by 4:00 p.m., p.m. (New York City time, ) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesSecurities tendered or deemed tendered for purchase, at a price not less than the applicable failed Remarketing Price pursuant (“Failed Remarketing”) shall be deemed to the terms have occurred, and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall so advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDTC, the Purchase Contract Agent, the Collateral Agent Indenture Trustee and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest Reset Rate shall equal the Two-Year Benchmark Treasury rate on plus the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental IndentureApplicable Margin.
(fh) In the event of Provided that there has not been a Successful Failed Remarketing, by approximately 4:30 p.m., p.m. (New York City time, ) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the DepositoryDTC, the Purchase Contract Agent[, the Property Trustee, the Collateral Agent, the Custodial Agent the] Indenture Trustee and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined in the Debentures Remarketing and the aggregate principal amount number of Remarketed Debentures Securities sold in such the Remarketing;
(ii2) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures Securities of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Securities such purchaser is to purchase;; and
(iii3) each such purchaser (if other than a Depository Participant) to give instructions to its Depository the Depositary Participant to pay the purchase price on the Remarketing Purchase Contract Settlement Date in same day funds against delivery of the Remarketed Debentures Securities purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the RemarketingDTC.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Special Event Redemption or a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company to occur pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket (the “Optional Remarketing”) the Remarketed Debentures at the applicable Remarketing PricePrice on a date or dates selected by the Company during an Optional Remarketing Period (each an “Optional Remarketing Date”). For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If In the case there is no Successful Optional Remarketing during the either Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if anyany (either because the Remarketing Agent is unable to remarket the Debentures at the Remarketing Price or because a condition precedent to the Remarketing has not been satisfied), and unless a Special Event Redemption or a Termination Event has occurred prior to such date, on each Remarketing Date in a date or dates during the Final Remarketing PeriodPeriod selected by the Company (each a “Final Remarketing Date”), the Remarketing Agent shall use its commercially reasonable efforts to remarket (the “Final Remarketing”) the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Final Remarketing Date in the Final Remarketing Period will be considered successful and no further attempts will be made if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the terms of the Debentures, including those which may be modified in connection with the Remarketing pursuant to the Indenture, including the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the sole reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i1) the Remarketing Agent is unable to Remarket remarket all of the Remarketed Debentures, other than to the Company, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii2) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDepositary, the Purchase Contract Agent, the Collateral Agent and the CompanyCompany of any such Failed Remarketing. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset reset, and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the DepositoryDepositary, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined by the Debentures Remarketing Agent in such Remarketing and the aggregate principal amount number of Remarketed Debentures sold in such Remarketing;
(ii2) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount number of Remarketed Debentures such purchaser is to purchase;
(iii3) each such purchaser (if other than a Depository Depositary Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the DepositoryDepositary; and
(iv4) each such purchaser (or Depository Depositary Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units Units, shall be paid to the Collateral Agent in accordance with Section 5.02 or 5.03, as applicable, of the Purchase Contract and Pledge Agreement and (ii) with respect to the Separate Debentures, in each case, shall be applied paid to the Custodial Agent for payment to the holders of such Separate Debentures in accordance with Section 5.02 or 5.03, as applicable, of the Purchase Contract and Pledge Agreement.
(h) The right of each holder of Remarketed Debentures to have such Remarketed Debentures remarketed and sold on any Remarketing Date shall be subject to the conditions that (i) (A) the Remarketing Agent conducts an Optional Remarketing, or (B) in the case of a Final Remarketing, that no Successful Optional Remarketing has occurred, each pursuant to the terms of this Agreement, (ii) neither a Special Event Redemption nor a Termination Event has occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Debentures at the Remarketing Price based on the Reset Rate, and (iv) such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agent as and when required.
(i) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender tender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Archer Daniels Midland Co)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Lehman Brothers Inc. as exclusive remarketing agent (the exclusive Remarketing "Remarkxxxxx Agent"), and, subject to the terms and conditions set forth herein, [ • ] hereby Lehman Brothers Inc. accepts appointment as Remarketing Agent, for the Agent fox xxx purpose of (i) remarketing the Remarketed Debentures Securities on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the The Remarketing Agent shall agrees (i) to use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when Securities tendered or deemed tendered to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion any Remarketing, (ii) to notify the Company of the new Fixed Rate, if any, established pursuant to any Remarketing and (iii) to carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify provisions of the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing AgentProcedures.
(c) If there On any date during which a Remarketing is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Periodbeing conducted, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures remarket, at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least a price equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period$1,000 per Depositary Share, Remarketed Securities tendered or deemed tendered for purchase.
(d) In connection with If, as a Remarketingresult of the Remarketing Agent's efforts described in Section 1(c), the Remarketing Agent has determined on any date during which a Remarketing is being conducted that it will be able to remarket all Remarketed Securities tendered or deemed tendered for purchase at a price of $1,000 per Depositary Share (including any accrued and unpaid distributions or interest, the "Remarketing Purchase Price") prior to 4:00 P.M., New York City time, on such date (any such date of determination, a "Remarketing Date"), the Remarketing Agent shall determinedetermine the Fixed Rate resulting from such Remarketing and to be applicable to the next succeeding Distribution Period, in consultation with the Company, which shall be the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of which the Remarketing Agent determines, in its sole judgment, to be the lowest rate per annum, if any, that will enable it to remarket all of Remarketed Securities tendered or deemed tendered for Remarketing at the Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable lawPurchase Price.
(e) IfIf any holder of Remarketed Securities submits a Notice of Election to tender some or all of its Depositary Shares in a Remarketing and separately notifies the Remarketing Agent that such holder desires to continue to hold a number of Depositary Shares, but only if the Fixed Rate determined by 4:00 p.m.the applicable Remarketing is not less than a specified rate per annum, the Remarketing Agent shall give priority to such holder's purchase of such number of Remarketed Securities in the Remarketing, provided that the new Fixed Rate is not less than such specified rate.
(f) By approximately 4:30 P.M., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed Debentures, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
, (i) the DepositoryDepository Trust Company (the "DTC") participant who will receive a credit for the Depositary Shares on DTC's records (the "Depositary Participant"), the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent Company and the Company (and promptly deliver a notice in writing to such Persons thereafter) Calculation Agent of the Reset any new Fixed Rate with respect established pursuant to the Debentures Remarketing and the aggregate principal amount number of Remarketed Debentures Securities sold in such the Remarketing;
, (ii) each purchaser of Remarketed Securities (or the Depository Depositary Participant thereof) of Remarketed Debentures of the Reset such new Fixed Rate and the aggregate principal amount number of Remarketed Debentures Securities such purchaser is to purchase;
purchase and (iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Securities purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the RemarketingDepositary Participant.
(g) The proceeds from a Successful If, by 4:00 P.M., New York City time, on the third business day prior to the Remarketing Settlement Date applicable to the Remarketing (isuch third business day, a "Remarketing Expiration Date") with respect the Remarketing Agent is unable to remarket all Remarketed Securities tendered or deemed tendered for purchase at the Debentures underlying Remarketing Price, the Applicable Ownership Interests in Debentures Remarketing Agent shall, by approximately 4:30 P.M., New York City time, on such date, advise by telephone the Depositary Participant, the Company and the Calculation Agent that are components of the Corporate Units and (ii) with respect to Distribution Rate for the Separate Debentures, in each case, shall Series F Preferred Shares for the next succeeding Distribution Period will be applied a Floating Rate determined in accordance with Section 5.02 of the Purchase Contract and Pledge AgreementSeries F Articles Supplementary.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Remarketing Agreement (First Industrial Realty Trust Inc)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • and [Capital Funding] [theTrust]hereby appoint as exclusive remarketing agent (the exclusive "Remarketing Agent"), and, subject to the terms and conditions set forth herein, [ • ] -------------- hereby (1) accepts appointment as Remarketing Agent, for the -------------- purpose of (iA) remarketing the Remarketing Remarketed Debentures Securities on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, thereof and (iiiB) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures, and (2) accepts and will perform all obligations of the Remarketing Agreement set forth in the [Trust Agreement,] [Officers' Certificate,] the Pledge Agreement and the Purchase Contract Agreement.
(b) Unless a Termination Event has occurred prior The Remarketing Agent agrees to such date(1) use reasonable efforts to remarket the Remarketed Securities tendered or deemed tendered to the Remarketing Agent in the Remarketing, if (2) notify the Company elects promptly of the Reset Rate and (3) carry out such other duties as are assigned to conduct an Optional the Remarketing during Agent in the Optional Remarketing Period selected by Procedures, all in accordance with the Company pursuant to provisions of the Remarketing Procedures.
(c) On the third Business Day immediately preceding the Purchase Contract and Pledge AgreementSettlement Date (the "Remarketing Date"), the Remarketing Agent shall use its commercially reasonable efforts to remarket remarket, at a price at least equal to [100.25%] of the Stated Amount, the Remarketed Debentures at Securities tendered or deemed tendered for purchase.
(d) If, as a result of the applicable Remarketing Price. For the avoidance of doubtefforts described in Section 2(b), the Company shall determine in its sole discretion if and when Remarketing Agent determines that it will be able to attempt an Optional Remarketing, as remarket all Remarketed Securities tendered or deemed tendered for purchase at a price at least equal to [100.25%] of the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In Stated Amount prior to 4:00 p.m. (New York City time) on the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify set the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless Reset Rate at a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread ) that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent determines to be the lowest rate per annum that will enable it to remarket all of the Remarketed Debentures Securities tendered or deemed tendered for purchase at no less than a price equal to [100.25%] of the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable lawStated Amount.
(e) upon receipt of the proceeds from the Remarketing, the Remarketing Agent shall:
(1) retain [25 basis points (.25%)] of the Stated Amount for the performance of its services as Remarketing Agent hereunder; and
(2) remit to the Collateral Agent all excess proceeds of the Remarketed Securities subject to the Pledge Agreement.
(f) If none of the holders of Remarketed Notes elects to have Remarketed Securities remarketed in the Remarketing, the Remarketing Agent shall determine the rate that would have been established had a Remarketing been held on the Remarketing Date, and such rate shall be the Reset Rate.
(g) If, by 4:00 p.m., p.m. (New York City time, ) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesSecurities tendered or deemed tendered for purchase, at a price not less than the applicable failed Remarketing Price pursuant ("Failed Remarketing") shall be deemed to the terms have occurred, and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall so advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDTC, the Purchase Contract Agent, the Collateral Agent Indenture Trustee and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest Reset Rate shall equal the Two-Year Benchmark Treasury rate on plus the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental IndentureApplicable Margin.
(fh) In the event of Provided that there has not been a Successful Failed Remarketing, by approximately 4:30 p.m., p.m. (New York City time, ) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the DepositoryDTC, the Purchase Contract Agent[, the Property Trustee, the Collateral Agent, the Custodial Agent the] Indenture Trustee and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined in the Debentures Remarketing and the aggregate principal amount number of Remarketed Debentures Securities sold in such the Remarketing;
(ii2) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures Securities of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Securities such purchaser is to purchase;; and
(iii3) each such purchaser (if other than a Depository Participant) to give instructions to its Depository the Depositary Participant to pay the purchase price on the Remarketing Purchase Contract Settlement Date in same day funds against delivery of the Remarketed Debentures Securities purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the RemarketingDTC.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Remarketing Agreement (Pp&l Capital Funding Trust I)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Xxxxxx Brothers Inc. as exclusive remarketing agent (the exclusive "Remarketing Agent"), and, upon the terms and subject to the conditions set forth in this Agreement, Xxxxxx Brothers Inc. hereby accepts such appointment. The Remarketing Agent agrees to (1) use its commercially reasonable efforts to remarket the Remarketing Senior Notes tendered to the Remarketing Agent, and, subject pursuant to the terms Indenture and conditions set forth herein, [ • ] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures on behalf of the holders thereof, (ii) determining, in consultation with the CompanyPurchase Contract Agreement, in the manner provided for herein and Remarketing and, in connection therewith, to determine the Purchase Contract and Pledge Reset Rate as set forth in this Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, Indenture and (iii2) performing carry out such other duties as are assigned to the Remarketing Agent herein, in each case, in accordance with the Transaction DocumentsRemarketing Procedures.
(b) Unless a Termination Event has occurred prior to such dateOn __________, if 2005 (the Company elects to conduct an Optional "Initial Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge AgreementDate"), the Remarketing Agent shall use its commercially reasonable efforts to remarket (the Remarketed Debentures "Initial Remarketing"), at a price at least equal to the applicable Remarketing Price. For the avoidance of doubtValue, the Company shall determine in its sole discretion if Remarketing Senior Notes tendered for purchase, pursuant to the Remarketing Procedures having been notified of the aggregate principal amount of such Remarketing Senior Notes by the Purchase Contract Agent and when the Collateral Agent pursuant to attempt an Optional RemarketingSection 5.3 of the Purchase Contract Agreement. If, as a result of such efforts, the Company may commence Remarketing Agent determines that it will be able to remarket all of the Remarketing Senior Notes tendered or postpone or cancel an Optional deemed tendered for purchase at a price at least equal to the Remarketing in its absolute and sole discretion. In Value prior to 4:00 p.m. (New York City time) on the case of an Optional Remarketing, on any Initial Remarketing Date, the Remarketing Agent shall notify determine the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) Reset Rate that will constitute enable it to remarket all Remarketing Senior Notes tendered or deemed tendered for Remarketing at an interest rate on the Treasury Portfolio, which will be selected by Initial Remarketing Date sufficient to allow the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein occur at a price equal to the Remarketing AgentValue.
(c) If there is no Successful Optional Remarketing during If, despite the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date commercially reasonable efforts described in the Final Remarketing Periodpreceding paragraph, the Remarketing Agent shall cannot remarket the Remarketing Senior Notes on the Initial Remarketing Date, the Remarketing Agent will continue to use its commercially reasonable efforts to remarket the Remarketed Debentures Remarketing Senior Notes (i) on one or more subsequent occasions from the Initial Remarketing Date to, and including, the ninth Business Day preceding the Purchase Contract Settlement Date and (ii) if necessary, on the third Business Day preceding the Purchase Contract Settlement Date, and in connection therewith to determine the Reset Rate at an interest rate on the applicable Remarketing Price. It is understood Date, if any, sufficient to allow the Remarketing at a price equal to the Remarketing Value as set forth herein and agreed that (each such subsequent Remarketing up to and including the ninth Business Day preceding the Purchase Contract Settlement Date being referred to as a "Subsequent Remarketing," and each such date to be referred to as, a "Subsequent Remarketing Date"; and the Remarketing on any the third Business Day preceding the Purchase Contract Settlement Date, being referred to as the "Final Remarketing," and such date to be referred to as, the "Final Remarketing Date Date;"), in each case in accordance with the Remarketing Procedures, PROVIDED that, the Final Remarketing Period will be considered successful Remarketing, if at all, must occur no later than on the resulting proceeds are at least equal to third Business Day immediately preceding the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing PeriodPurchase Contract Settlement Date.
(d) If any Remarketing is successful (a "Successful Remarketing" and, such date to be referred to as the "Remarketing Date"), then:
(i) By approximately 4:30 p.m. (New York City time) on such Remarketing Date, (A) the Remarketing Agent shall advise by telephone the Company, the Purchase Contract Agent, the Collateral Agent, the Securities Intermediary, the Depositary and the Trustee, of the Reset Rate determined in the Remarketing, (B) the Remarketing Agent shall advise each purchaser or DTC participant (the "Depositary Participant") thereof purchasing Senior Notes sold in the Remarketing of the Reset Rate and the number of Senior Notes such purchaser is to purchase and (C) the Remarketing Agent shall request each purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day after the Remarketing Date (the "Remarketing Settlement Date") in same day funds against delivery of the remarketed Remarketing Senior Notes purchased through the facilities of the Depositary. In connection accordance with the Depositary's normal procedures, on the Remarketing Settlement Date or the Purchase Contract Settlement Date, as applicable, the transactions described above with respect to each Senior Notes remarketed in the Remarketing shall be executed through the Depositary, and the accounts of the respective Depositary Participants shall be debited and credited, respectively, and such Remarketing Senior Notes delivered by book-entry, as necessary to effect purchases and sales of such Remarketing Senior Notes; PROVIDED that, the settlement procedures set forth herein, including provisions for payment by purchasers of the Remarketing Senior Notes in the Remarketing, shall be subject to modification to the extent required by the Depositary or if the book-entry system is no longer available for the Remarketing Senior Notes at the time of the Remarketing, to facilitate the remarketing of the Remarketing Senior Notes in certificated form and the Remarketing Agent may modify such settlement procedures in order to facilitate the settlement process.
(ii) Upon receipt of the proceeds from a Successful Remarketing, the Remarketing Agent shall determineshall:
(A) deduct and retain for itself an amount equal to .25% of the principal amount of the remarketed Remarketing Senior Notes as a fee for the performance of its services as Remarketing Agent hereunder;
(B) (I) if the Successful Remarketing occurs prior to the third Business Day preceding the Purchase Contract Settlement Date, use the remaining proceeds with respect to the Pledged Senior Notes from such Successful Remarketing to purchase the Treasury Portfolio, in consultation with open market transactions and/or at Treasury auctions, in the Company, amount and types of Treasury securities describe in clauses (1)(i) and (2)(ii) of the rate per annum, rounded definition of Remarketing Value related to the nearest one-thousandth Pledged Senior Notes, deliver such Treasury Portfolio to the Collateral Agent on the Remarketing Settlement Date or as soon thereafter as is practicable, or (0.001II) if such Successful Remarketing occurs on the Final Remarketing Date, remit to the Collateral Agent the portion of one percent per annumthe remaining proceeds with respect to the Pledged Senior Notes from such Successful Remarketing to be delivered to the Purchase Contract Agent in settlement of the Purchase Contracts on the Purchase Contract Settlement Date;
(C) if any Separated Senior Notes were included in such successful Remarketing, orremit to the Collateral Agent for payment to the holders of such Separated Senior Notes sold in such Successful Remarketing the remaining proceeds with respect to such remarketed Separated Senior Notes from the Remarketing less the remarketing fee in an amount equal to 100% of the principal amount of such Remarketing Senior Notes; and
(D) remit any remaining balance of such proceeds after the application of such proceeds as set forth in clauses (A) through (C) above, if any, to the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order Purchase Contract Agent for the Remarketed Debentures benefit of the Holders of the remarketed Pledged Senior Notes and to have an aggregate market value equal to at least the applicable Collateral Agent for the for the holders of any remarketed Separated Senior Notes, on a pro rata basis; PROVIDED, HOWEVER, that if such Successful Remarketing Price and that in the is consummated after 4:30 p.m. (New York City time) on such Remarketing Date and, despite using its commercially reasonable discretion of efforts, the Remarketing Agent will enable it to remarket all cannot cause the applications of the Remarketed Debentures at no less than proceeds specified above to occur on such Remarketing Date, then the applicable Remarketing Price Agent may make such applications and remittances on the next succeeding Business Day. The Remarketing Agent may, in such Remarketing; provided its discretion, communicate with holders of the Senior Notes, and prospective purchasers of Remarketing Senior Notes, in connection with its remarketing efforts in order to facilitate the remarketing and the intent and purpose of this Agreement despite the fact that such Reset Rate shall communication may not exceed the maximum interest rate permitted by applicable lawbe expressly required herein.
(e) If, by 4:00 p.m., p.m. (New York City time, ) on the applicable Remarketing ninth Business Day preceding the Purchase Contract Settlement Date, (i) the Remarketing Agent Agent, despite using its commercially reasonable efforts, has been and is unable to Remarket remarket all of the Remarketed Debentures, Remarketing Senior Notes tendered for purchase at a price not less than the applicable Remarketing Price pursuant equal to the terms and conditions hereof or (ii) at least the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfiedValue, the Remarketing Agent shall advise Transfer to the Collateral Agent, by the sixth Business Day preceding the Purchase Contract Settlement Date, the Pledged Senior Notes that were to be remarketed in the Initial Remarketing or Subsequent Remarketing, whereupon the Collateral Agent shall, for the benefit of the Company, apply such Pledged Senior Notes, to secure the obligation of the related Holders of Corporate PIES to purchase Common Stock under the related Purchase Contracts.
(f) If, (1) by 4:00 p.m. (New York City time), on the Final Remarketing Date, the Remarketing Agent, despite using its commercially reasonable efforts, has been and is unable to remarket all of the Remarketing Senior Notes tendered for purchase at a price equal to at least the Remarketing Value, or (2) the Remarketing Agent has determined that the Remarketing may not be commenced or consummated as contemplated herein and by the Remarketing Procedures under applicable law, a failed Remarketing (a "Failed Remarketing") shall be deemed to have occurred. If a Failed Remarketing occurs, the Remarketing Agent and the Company, as applicable, shall take the following actions:
(i) The Remarketing Agent shall notify by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryCompany, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been Trustee, that a Failed Remarketing will be determined in has occurred, whereupon the sole reasonable discretion of Company shall notify the Remarketing Agent. In the event of Depositary, by telephone, that a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental IndentureRemarketing has occurred.
(fii) In The Company shall cause a notice of the event Failed Remarketing to be sent to the holders of a Successful Remarketingall Senior Notes and to be published, by approximately 4:30 p.m.in an Authorized Newspaper, New York City timein each case, on no later than the applicable Remarketing Business Day preceding Purchase Contract Settlement Date, the .
(iii) The Remarketing Agent shall advisedetermine the Reset Rate that will be equal to the Two Year Benchmark Treasury plus the Applicable Spread in accordance to paragraph 19(ii) of the Indenture Officers' Certificate.
(iv) The Remarketing Agent shall remit the Pledged Senior Notes that were to be remarketed to the Purchase Contract Agent and the Separated Senior Notes that were to be remarketed to the Collateral Agent.
(g) If all of the holders of Corporate PIES elect not to participate in the Remarketing and no holders of Separated Senior Notes elect to participate in the Remarketing and deliver such Separated Senior Notes and a notice of such election to the Collateral Agent by the Election Date, by telephonein accordance with the Indenture Officers' Certificate, then:
(i) the DepositoryRemarketing Agent shall, in its sole discretion, determine the Purchase Contract Agentrate that, in its judgment, would have been established had a Remarketing been held on the TrusteeFinal Remarketing Date, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of rate shall be the Reset Rate with respect to the Debentures and the aggregate principal amount of Remarketed Debentures sold in such RemarketingRate;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures of Remarketing Agent shall advise by telephone the Reset Rate Company and the aggregate principal amount Trustee of Remarketed Debentures such purchaser is to purchase;Reset Rate, whereupon the Company shall notify the Depositary in writing of such Reset Rate; and
(iii) each the Company shall cause a notice of such purchaser (if other than a Depository Participant) Reset Rate to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior sent to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have holders of all Senior Notes and to specify be published in an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate DebenturesAuthorized Newspaper, in each case, shall be applied in accordance with Section 5.02 of no later than the Business Day preceding the Purchase Contract and Pledge AgreementSettlement Date.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Remarketing Agreement (Sierra Pacific Resources Capital Trust Ii)
Appointment and Obligations of the Remarketing Agent. (a) The Company and the Trust (together, the "Issuers") hereby appoints [ • ] appoint Xxxxxx Brothers Inc. as exclusive remarketing agent (the exclusive "Remarketing Agent"), and, subject to the terms and conditions set forth herein, [ • ] Xxxxxx Brothers Inc. hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketing Remarketed Debentures Securities on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the The Remarketing Agent shall agrees to:
(i) use its commercially reasonable efforts to remarket the Remarketed Debentures Securities deemed tendered to the Remarketing Agent in the Remarketing;
(ii) notify the Issuers promptly of the Reset Rate; and
(iii) carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures.
(c) On the second Business Day immediately preceding the Remarketing Settlement Date (the "Remarketing Date"), the Remarketing Agent shall use commercially reasonable efforts to remarket, at a price equal to
(i) 100% of the aggregate Accreted Value thereof as of the end of the day on the day next preceding the Remarketing Date; and
(ii) on the Maturity Remarketing Date, 100% of the stated liquidation amount.
(d) If, as a result of the efforts described in Section 1(b), the Remarketing Agent determines that it will be able to remarket all Remarketed Securities deemed tendered for purchase at the applicable Remarketing Price. For purchase price set forth in Section 1(c) prior to 4:00 p.m. (New York City time) on the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify determine the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury PortfolioReset Rate, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread ) that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent determines, in its sole judgment, to be the lowest rate per annum that will enable it to remarket all Remarketed Securities deemed tendered for Remarketing. In the event of a Remarketing:
(i) in connection with a Remarketing upon a Trading Remarketing Event or a Legal Cause Remarketing Event, the Accreted Value of the Remarketed Debentures at no less than as of the applicable end of the day on the day next preceding the Remarketing Price in such Remarketing; provided that such Date shall become due on the date which is 60 days following the Remarketing Date, and (if applicable), as a result, the Accreted Value of the Securities as of the end of the day on the day next preceding the Remarketing Date shall be redeemed on the date which is 60 days following the Remarketing Date;
(ii) on the Remarketing Date, the rate of interest per annum on the Accreted Value of the Debentures shall become the Reset Rate on the Accreted Value of the Securities established in the Remarketing, and (if applicable), as a result, the Distribution rate per annum on the Accreted Value of the Securities shall not exceed become the maximum Reset Rate established in the Remarketing of the Preferred Securities;
(iii) on the Remarketing Settlement Date, interest rate permitted by applicable lawaccrued and unpaid on the Debentures from and including the immediately preceding Interest Payment Date to, but excluding, the Remarketing Settlement Date shall be payable to the holders of the Debentures on the Special Record Date, and (if applicable), as a result, Distributions accumulated and unpaid on the Preferred Securities from and including the immediately preceding Distribution Date to, but excluding, the Remarketing Settlement Date shall be payable to the Holders of the Preferred Securities on the Special Record Date;
(iv) in connection with a Remarketing upon a Trading Remarketing Event or a Legal Cause Remarketing Event, the Sponsor shall be obligated to redeem the Warrants on the Remarketing Settlement Date at a redemption price per Warrant equal to the Warrant Value as of the end of the day on the day next preceding the Remarketing Date; and
(v) on and after the Remarketing Date, the Warrants shall be exercisable at the Exercise Price.
(e) If none of the holders of Remarketed Securities elects to have Remarketed Securities remarketed in the Remarketing, the Remarketing Agent shall determine the rate that would have been established had a Remarketing been held on the Remarketing Date, and such rate shall be the Reset Rate, and the related modifications to the other terms of the Preferred Securities and to the terms of the Debentures and the Warrants shall be effective as of the Remarketing Date.
(f) If, by 4:00 p.m., p.m. (New York City time, ) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesSecurities deemed tendered for purchase, at a price not less than the applicable Failed Remarketing Price pursuant shall be deemed to the terms have occurred, and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall so advise by telephone The Depository Trust Company (and promptly deliver a notice in writing thereafter to) the Depository"DTC"), the Purchase Contract AgentProperty Trustee, the Collateral Agent Debenture Trustee, the Trust and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing:
(i) the Accreted Value of the Debentures as of the end of the day on the day next preceding the Remarketing Date shall become due on the date which is 60 days following the Failed Remarketing Date, and (if applicable), as a result, the applicable interest rate Accreted Value of the Securities as of the end of the day on the day next preceding the Remarketing Date shall be redeemed on the date which is 60 days following the Failed Remarketing Date;
(ii) the rate of interest per annum on the Accreted Value of the Debentures will not be reset shall become the Reset Rate, and will continue (if applicable), as a result, the rate of Distribution per annum on the Accreted Value of the Securities shall become the Reset Rate; and
(iii) pursuant to be the Coupon Rate set forth in Indenture, the Supplemental IndentureCompany no longer shall have the option to defer payments of interest on the Debentures.
(fg) In the event of a Successful Remarketing, by By approximately 4:30 p.m., p.m. (New York City time, ) on the applicable Remarketing Date, provided that there has not been a Failed Remarketing, the Remarketing Agent shall advise, by telephone:
(i) the DepositoryDTC, the Purchase Contract Agent, the Property Trustee, the Collateral AgentDebenture Trustee, the Custodial Agent Trust and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined in the Debentures Remarketing and the number of Remarketed Securities (or, if applicable, aggregate principal amount of Remarketed Debentures Securities) sold in such the Remarketing;,
(ii) each purchaser (or the Depository Participant thereoftheir DTC participant) of Remarketed Debentures of the Reset Rate and the number of Remarketed Securities (or, if applicable, aggregate principal amount of Remarketed Debentures Securities) such purchaser is to purchase;; and
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant DTC participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Securities purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the RemarketingDTC.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Remarketing Agreement (Washington Mutual Capital Trust 2001)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • [—] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • [—] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. p.m., New York City time time, on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two three Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures Notes as floating-rate Debentures Notes as described in Section 2(i)(32(i)(2), the interest rate index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed DebenturesNotes, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures Notes and the aggregate principal amount of Remarketed Debentures Notes sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures Notes of the Reset Rate and the aggregate principal amount of Remarketed Debentures Notes such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units and (ii) with respect to the Separate DebenturesNotes, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things: (1) move up the stated maturity of the Notes to a date earlier than November 1, 2025 but not earlier than November 1, 2024 and (2) remarket the Debentures Notes as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures Notes shall be equal to an interest rate index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures Notes may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rateinterest rate index).
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Dte Energy Co)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Deutsche Bank as the exclusive initial Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] Deutsche Bank hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing Remarketing the Remarketed Debentures Securities on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, establishing the Reset Rate (as defined below) for the Debentures, Securities in connection with the Remarketing and (iii) performing such other duties as are assigned to the Remarketing Agent Agents in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior The Remarketing Agents agree (i) to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at Securities tendered or deemed tendered to the applicable Remarketing Price. For Agents in the avoidance of doubtRemarketing, (ii) to establish the Reset Rate in accordance with the Remarketing Procedures and to notify the Company, the Company shall determine Trustee and the Stock Purchase Contract Agent promptly of the Reset Rate and (iii) to carry out such other duties as are assigned to the Remarketing Agents in its sole discretion if and when to attempt an Optional Remarketingthe Remarketing Procedures, as all in accordance with the Company may commence or postpone or cancel an Optional provisions of the Remarketing in its absolute and sole discretion. In Procedures.
(c) On the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent Agents shall use its their commercially reasonable efforts to remarket the Remarketed Debentures Securities tendered or deemed tendered for purchase, at a price which results in cash proceeds equal to at least the applicable sum of (i) the remarketing fee to be paid to the Remarketing Agents in connection with the Remarketing in an amount to be specified in the Pricing Agreement (such fee, the “Remarketing Fee”), (ii) 100% of the aggregate principal amount of such Remarketed Securities and (iii) the product of five basis points (0.05%) and the aggregate principal amount of such Remarketed Securities (such sum, the “Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period”).
(d) In connection with a RemarketingOn the Remarketing Date, the Remarketing Agent Agents shall determine, in consultation with the Company, determine the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3(0.001%), the index rate plus spread that the Remarketed Debentures Securities should bear (which rate will apply to all Securities whether or not such fixed or floating rate, Securities were included in the Remarketing) (the “Reset Rate”) in order for the Remarketed Debentures Securities to have an aggregate market value generate cash proceeds from the Remarketing equal to at least the applicable Remarketing Price and that in the sole reasonable discretion of the Remarketing Agent Agents will enable it them to remarket all of the Remarketed Debentures Securities tendered or deemed tendered for purchase in such Remarketing at no less than the applicable Remarketing Price in Price; provided, however, that, unless such Remarketing; provided that such requirement has been validly waived by the Company, the Reset Rate shall may not exceed the maximum interest rate permitted prevailing market yield, as determined by applicable lawthe Remarketing Agents, of the benchmark U.S. treasury security having a remaining maturity that most closely corresponds to the period from the Remarketing Settlement Date until the Stated Maturity of the Securities (after giving effect to the change in the Stated Maturity of the Securities on the Remarketing Settlement Date pursuant to the Indenture), plus 750 basis points per annum; provided, further, that the Reset Rate may not be less than 0% per annum.
(e) IfIn the event of a Remarketing that is not a Successful Remarketing, by 4:00 p.m.the Remarketing Agents shall promptly remit (i) to the Custodial Agent the Remarketed Securities, if any, that are no longer a component of the Units (“Separate Securities”), and (ii) to the Collateral Agent the balance of the Remarketed Securities.
(f) By no later than 4:30 P.M., New York City time, on the applicable Remarketing Settlement Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed Debentures, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not provided that there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Successful Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent Agents shall advise, by telephone:
(i) the Depository, the Company, the Stock Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (Trustee that the Remarketing was a Successful Remarketing and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined in the Debentures Remarketing and the aggregate principal amount of Remarketed Debentures Securities sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount of Remarketed Debentures such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) In accordance with The proceeds from a Successful Depository Trust Company’s (the “Depositary”) normal procedures, on the Remarketing (i) Settlement Date, the transactions described above with respect to each Remarketed Security tendered for purchase and sold in the Debentures underlying Remarketing shall be executed through the Applicable Ownership Interests in Debentures that are components Depositary, and the accounts of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, respective Depositary participants shall be applied in accordance with Section 5.02 debited and credited and such Remarketed Securities delivered by book-entry as necessary to effect purchases and sales of the Purchase Contract and Pledge Agreementsuch Remarketed Securities.
(h) It is understood and agreed that On the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesSettlement Date, whether the tender and settlement procedures set forth in the Remarketing or otherwisethis Section 1, and shall in no way be obligated to provide funds to make including provisions for payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender by purchasers of the Remarketed Debentures Securities in the Remarketing, shall be subject to modification to the extent required by the Depositary or, if the book-entry system is no longer available for the Remarketed Securities at the time of the Remarketing, to facilitate the tendering and remarketing of the Remarketed Securities in certificated form. In addition, the Remarketing Agents may modify the settlement procedures set forth herein in order to facilitate the settlement process.
(i) Notwithstanding anything On the Remarketing Settlement Date, the Remarketing Agents shall deduct the Remarketing Fee from the gross proceeds of the Remarketing and shall remit any proceeds remaining after such deduction as follows: (i) to the contrary hereinextent such net proceeds relate to Remarketed Securities that form part of any Normal Common Equity Unit (as defined in the Stock Purchase Contract Agreement), it is understood to the Securities Intermediary and agreed (ii) to the extent such net proceeds relate to the Separate Securities that were included in the Remarketing as Remarketed Securities to, or at the direction of, the Custodial Agent for payment to the holders of such Separate Securities. Holders whose Series D Debt Securities are remarketed pursuant to this Remarketing Agreement will not otherwise be responsible for the payment of any Remarketing Fee in connection therewith.
(j) If fewer than all of the Remarketed Securities are remarketed in accordance with any Remarketingthe terms hereof, the Company may electRemarketing shall be deemed to have failed as to all Remarketed Securities.
(k) If at any time during the term of this Remarketing Agreement, any Event of Default (as defined in consultation the Indenture) or event that with the passage of time or the giving of notice or both would become such an Event of Default has occurred and is continuing under the Indenture, then the obligations and duties of the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures Agents under this Remarketing Agreement shall be equal suspended until such default or event has been cured. The Company will promptly cause the Trustee, the Stock Purchase Contract Agent and the Collateral Agent to an index selected by the Company plus a spread determined by give the Remarketing Agent, in consultation with the Company, in Agents notice of all such defaults and events of which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (such trustee or such other basis as agent is customarily used for floating-rate notes bearing interest at a rate based on such index rate)aware.
Appears in 1 contract
Samples: Remarketing Agreement (Metlife Inc)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • [●] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • [●] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Eleventh Supplemental Indenture or the Twelfth Supplemental Indenture, as applicable, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two three Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed DebenturesNotes, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset and will continue to be the Coupon Rate set forth in the Sixth Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephonewritten notice:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures Notes and the aggregate principal amount of Remarketed Debentures Notes sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures Notes of the Reset Rate and the aggregate principal amount of Remarketed Debentures Notes such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units and (ii) with respect to the Separate DebenturesNotes, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Dominion Resources Inc /Va/)
Appointment and Obligations of the Remarketing Agent. (a) The Company Trust hereby appoints [ • ] Xxxxxx, and Xxxxxx hereby accepts such appointment, as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] hereby accepts appointment as Remarketing Agent, Agent for the purpose of (i) remarketing the Remarketed Debentures Class A Trust Certificates from time to time on behalf of the holders Holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iiiii) performing such other duties as are assigned to the Remarketing Agent herein and in the Transaction DocumentsClass A Trust Certificates, all pursuant to the procedures set forth herein and in the Class A Trust Certificates, provided, however, that the Trust may appoint BLB or a subsidiary of BLB that is qualified to conduct Remarketing as an additional Remarketing Agent (the "Additional Remarketing Agent") pursuant to a remarketing agreement between the Trust and BLB or such subsidiary of BLB, which remarketing agreement shall be substantially identical to this Agreement.
(b) Unless a Termination Event has occurred prior The Remarketing Agent agrees, subject to such dateSection 4(c) hereof, if (i) to use its best efforts to remarket the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant Class A Trust Certificates tendered to the Purchase Contract Remarketing Agent in a regularly scheduled Remarketing from time to time, and Pledge Agreement(ii) to carry out such other duties as are assigned to the Remarketing Agent herein, all in accordance with the provisions hereof and the Class A Trust Certificates.
(c) It is understood and agreed by and among the parties hereto that the Remarketing Agent shall use its commercially reasonable efforts not be obligated to remarket Class A Trust Certificates at any time that any of the Remarketed Debentures at conditions as set forth in Section 8 hereof shall not have been fully and completely met to the applicable reasonable satisfaction of the Remarketing Price. For the avoidance of doubtAgent.
(d) By 12:00 noon, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional RemarketingNew York City time, on any each Remarketing Date, the Remarketing Agent shall notify advise the CompanyTrustee by telephone (or such other means as is acceptable to the Trustee) of the total principal amount (as used herein and in the Transfer Form attached hereto as Exhibit A, "principal amount" means the Collateral Agent face amount of the related Class A Trust Certificate or Certificates) of Class A Trust Certificates tendered by Holders for the relevant Remarketing and the Quotation Agent total principal amount of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price Class A Trust Certificates purchased in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m.By 12:00 noon, New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed Debentures, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable each Remarketing Date, the Remarketing Agent shall advisegive BLB, as the Liquidity Facility Provider, a telephonic notice (or a notice by telephone:
such other means as is acceptable to BLB), confirmed promptly in writing, specifying (i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing amount of Class A Trust Certificates to be purchased by BLB on such Persons thereafter) of the Reset Rate with respect Remarketing Date pursuant to the Debentures Liquidity Agreement, and the aggregate principal amount of Remarketed Debentures sold in such Remarketing;
(ii) each purchaser the aggregate purchase price of such Class A Trust Certificates.
(or the Depository Participant thereoff) of Remarketed Debentures The transfer restrictions set forth in Sections 3.09, 3.10 and 3.11 of the Reset Rate Trust Agreement and the aggregate principal amount of Remarketed Debentures such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date offer and sale procedures set forth in same day funds against delivery Section 5 of the Remarketed Debentures purchased through the facilities Purchaser Agreement shall apply to a Remarketing of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the RemarketingClass A Trust Certificates.
(g) The proceeds from a Successful Remarketing (i) Agent may, with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components consent of the Corporate Units Trustee and (ii) with respect to the Separate DebenturesLiquidity Provider, in each case, shall be applied in accordance with Section 5.02 of modify the Purchase Contract remarketing procedures set forth herein and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Supplement (the "Remarketing Procedures") so long as any such modification does not materially and adversely affect the Trust or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for RemarketingHolders.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Deutsche Bank as the exclusive initial Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] Deutsche Bank hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing Remarketing the Remarketed Debentures Securities on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, establishing the Reset Rate (as defined below) for the Debentures, Securities in connection with the Remarketing and (iii) performing such other duties as are assigned to the Remarketing Agent Agents in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior The Remarketing Agents agree (i) to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at Securities tendered or deemed tendered to the applicable Remarketing Price. For Agents in the avoidance of doubtRemarketing, (ii) to establish the Reset Rates in accordance with the Remarketing Procedures and to notify the Company, the Company shall determine Trustee and the Stock Purchase Contract Agent promptly of the Reset Rates and (iii) to carry out such other duties as are assigned to the Remarketing Agents in its sole discretion if and when to attempt an Optional Remarketingthe Remarketing Procedures, as all in accordance with the Company may commence or postpone or cancel an Optional provisions of the Remarketing in its absolute and sole discretion. In Procedures.
(c) On the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent Agents shall use its their commercially reasonable efforts to remarket the Remarketed Debentures Securities tendered or deemed tendered for purchase, at a price which results in cash proceeds equal to at least the applicable sum of (i) the remarketing fee to be paid to the Remarketing Agents in connection with the Remarketing in an amount to be specified in the Pricing Agreement (such fee, the “Remarketing Fee”), (ii) 100% of the aggregate principal amount of such Remarketed Securities, (iii) the accrued and unpaid interest, if any, to the Initial Scheduled First Stock Purchase Date on such Remarketed Securities and (iv) the product of five basis points (0.05%) and the aggregate principal amount of such Remarketed Securities (such sum, the “Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period”).
(d) In connection with a RemarketingOn the Remarketing Date, the Remarketing Agent Agents shall determine, in consultation with the Company, determine the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3(0.001%), the index rate plus spread that the Remarketed Debentures each tranche of Securities should bear (which rate will apply to all Securities of the applicable tranche whether or not such fixed or floating rate, Securities were included in the Remarketing) (the “Reset Rate”) in order for each tranche of the Remarketed Debentures Securities to have an aggregate market value generate cash proceeds from the Remarketing equal to at least the applicable Remarketing Price allocable to that tranche and that in the sole reasonable discretion of the Remarketing Agent Agents will enable it them to remarket all Remarketed Securities of the Remarketed Debentures such tranche tendered or deemed tendered for purchase in such Remarketing at no less than the applicable Remarketing Price in such Remarketingallocable to that tranche; provided that provided, that, each such Reset Rate shall need not, but may, be the same for each tranche of Securities; provided, however, that, unless such requirement has been validly waived by the Company, the Reset Rate may not exceed the maximum interest rate permitted prevailing market yield, as determined by the Remarketing Agents, of the benchmark U.S. treasury security having a remaining maturity that most closely corresponds to the period from the Remarketing Settlement Date until the Stated Maturity of the applicable lawtranche of the Securities (after giving effect to the change in the Stated Maturity of each tranche of the Securities on the Remarketing Settlement Date pursuant to the Indenture), plus 750 basis points per annum; provided, further, that neither Reset Rate may be less than 0% per annum.
(e) IfIn the event of a Remarketing that is not a Successful Remarketing, by 4:00 p.m.the Remarketing Agents shall promptly remit (i) to the Custodial Agent the Remarketed Securities, if any, that are no longer a component of the Units (“Separate Securities”), and (ii) to the Collateral Agent the balance of the Remarketed Securities.
(f) By no later than 4:30 P.M., New York City time, on the applicable Remarketing Settlement Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed Debentures, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not provided that there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Successful Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent Agents shall advise, by telephone:
(i) the Depository, the Company, the Stock Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (Trustee that the Remarketing was a Successful Remarketing and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to Rates determined in the Debentures Remarketing and the aggregate principal amount of Remarketed Debentures Securities sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount of Remarketed Debentures such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) In accordance with The proceeds from a Successful Depository Trust Company’s (the “Depositary”) normal procedures, on the Remarketing (i) Settlement Date, the transactions described above with respect to each Remarketed Security tendered for purchase and sold in the Debentures underlying Remarketing shall be executed through the Applicable Ownership Interests in Debentures that are components Depositary, and the accounts of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, respective Depositary participants shall be applied in accordance with Section 5.02 debited and credited and such Remarketed Securities delivered by book-entry as necessary to effect purchases and sales of the Purchase Contract and Pledge Agreementsuch Remarketed Securities.
(h) It is understood and agreed that On the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesSettlement Date, whether the tender and settlement procedures set forth in the Remarketing or otherwisethis Section 1, and shall in no way be obligated to provide funds to make including provisions for payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender by purchasers of the Remarketed Debentures Securities in the Remarketing, shall be subject to modification to the extent required by the Depositary or, if the book-entry system is no longer available for the Remarketed Securities at the time of the Remarketing, to facilitate the tendering and remarketing of the Remarketed Securities in certificated form. In addition, the Remarketing Agents may modify the settlement procedures set forth herein in order to facilitate the settlement process.
(i) Notwithstanding anything On the Remarketing Settlement Date, the Remarketing Agents shall deduct the Remarketing Fee from the gross proceeds of the Remarketing and shall remit any proceeds remaining after such deduction as follows: (i) to the contrary hereinextent such net proceeds relate to Remarketed Securities that form part of any Normal Common Equity Unit (as defined in the Stock Purchase Contract Agreement), it is understood to the Securities Intermediary and agreed (ii) to the extent such net proceeds relate to the Separate Securities that were included in the Remarketing as Remarketed Securities to, or at the direction of, the Custodial Agent for payment to the holders of such Separate Securities. Holders whose First Tranche Series C Debt Securities and Second Tranche Series C Debt Securities are remarketed pursuant to this Remarketing Agreement will not otherwise be responsible for the payment of any Remarketing Fee in connection therewith.
(j) If fewer than all of the Remarketed Securities are remarketed in accordance with any Remarketingthe terms hereof, the Company may electRemarketing shall be deemed to have failed as to all Remarketed Securities.
(k) If at any time during the term of this Remarketing Agreement, any Event of Default (as defined in consultation the Indenture) or event that with the passage of time or the giving of notice or both would become such an Event of Default has occurred and is continuing under the Indenture, then the obligations and duties of the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures Agents under this Remarketing Agreement shall be equal suspended until such default or event has been cured. The Company will promptly cause the Trustee, the Stock Purchase Contract Agent and the Collateral Agent to an index selected by the Company plus a spread determined by give the Remarketing Agent, in consultation with the Company, in Agents notice of all such defaults and events of which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (such trustee or such other basis as agent is customarily used for floating-rate notes bearing interest at a rate based on such index rate)aware.
Appears in 1 contract
Samples: Remarketing Agreement (Metlife Inc)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • [—] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • [—] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event or a Special Event Redemption has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) Securities that will constitute the Remarketing Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Remarketing Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event or a Special Event Redemption has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two three Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent Company shall determine, in consultation with the CompanyRemarketing Agent, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed DebenturesNotes, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures Notes and the aggregate principal amount of Remarketed Debentures Notes sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures Notes of the Reset Rate and the aggregate principal amount of Remarketed Debentures Notes such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ● ] as the exclusive Remarketing AgentAgent(s), and, subject to the terms and conditions set forth herein, [each of] [ • ● ] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental IndentureIndentures, the Reset Rate Rates for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole reasonable discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. p.m., New York City time time, on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset RateRates”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate Rates shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed DebenturesNotes, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset and will continue to be the Coupon Securities Rate set forth (as defined in the Supplemental IndentureIndentures).
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephonetelephone or e-mail:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate Rates with respect to the Debentures Notes and the aggregate principal amount of Remarketed Debentures Notes sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures Notes of the Reset Rate Rates and the aggregate principal amount of Remarketed Debentures Notes such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units and (ii) with respect to the Separate DebenturesNotes, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Southern Co)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • [—] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • [—] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentureseach tranche of Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone or cancel the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two three Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, (1) the Remarketing Agent shall determine, in consultation with the Company, if the Notes are remarketed as fixed-rate notes (or for any tranche of Notes if the Company elects to remarket the Notes in tranches), the rate per annum, and, if the Notes are remarketed as floating-rate notes (or for any tranche of Notes if the Company elects to remarket the Notes in tranches), the interest rate spread, in each case, rounded to the nearest one-thousandth (0.001) of one percent per annum, orthat the Remarketed Notes (or the Remarketed Notes of any tranche) should bear (the reset rate, if in the Company elects to remarket case of fixed-rate notes, or the Debentures as applicable index plus the reset interest spread, in the case of floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating ratenotes, the “Reset Rate”) in order for the Remarketed Debentures Notes (or the Remarketed Notes of any tranche) to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket Remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law; and (2) the Company shall consult with the Remarketing Agent regarding the Company’s election whether to modify the other terms of the Notes (which election shall be in the Company’s sole and absolute discretion) and its elections on which terms to modify, in each case, which may be modified at the election of the Company in connection with the Remarketing pursuant to the Indenture.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed DebenturesNotes, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDepositary, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures each tranche of Notes and, if any, other modified terms, and the aggregate principal amount of Remarketed Debentures Notes (or the amount of each tranche of Remarketed Notes, if the Notes are Remarketed in tranches) sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures Notes of the Reset Rate and, if any, other modified terms, and the aggregate principal amount of Remarketed Debentures Notes such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units and (ii) with respect to the Separate DebenturesNotes, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender tender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (United Technologies Corp /De/)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • [•] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • [•] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Early Remarketing during the Optional an Early Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. If the Remarketing Agent is unsuccessful on the first Early Remarketing Date during such Early Remarketing Period, a subsequent Remarketing shall be attempted (unless impracticable) by the Remarketing Agent on each of the two following Early Remarketing Dates in that Early Remarketing Period until a Successful Early Remarketing occurs. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Early Remarketing, as and the Company may commence or postpone or cancel an Optional Early Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Early Remarketing during the Optional any Early Remarketing Period or no Optional Early Remarketing occurs on any Optional Early Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful and no further attempts will be made if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to may not postpone the Final a Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of during the Final Remarketing Period.
(d) In connection with a each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the terms of the Remarketed Notes, including those which may be modified in connection with the Remarketing pursuant to the Indenture, including the Company’s election whether to modify the maturity date, optional redemption provisions, Events of Default, interest payment dates and/or the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the sole reasonable discretion of the Remarketing Agent will enable it them to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate rate shall not exceed the maximum interest rate permitted by applicable lawlaw and shall not be a contingent or floating rate.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesNotes, other than to the Company, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter tothereafter) the DepositoryDepositary, the Purchase Contract Agent, the Collateral Agent and the CompanyCompany of any such Failed Remarketing. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset reset, and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the DepositoryDepositary, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent Trustee and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to Rate, interest payment dates, modified Events of Default, if any, maturity date, ranking and optional redemption terms, if any, determined by the Debentures Remarketing Agent in such Remarketing and the aggregate principal amount of Remarketed Debentures Notes sold in such Remarketing;
(ii) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures Notes of the Reset Rate Rate, interest payment dates, maturity date, ranking and optional redemption terms, if any, and the aggregate principal amount of Remarketed Debentures Notes such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Depositary Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the DepositoryDepositary; and
(iv) each such purchaser (or Depository Depositary Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units Units, shall be paid to the Collateral Agent in accordance with Section 5.02 or 5.03, as applicable, of the Purchase Contract and Pledge Agreement and (ii) with respect to the Separate Debentures, in each caseNotes, shall be applied paid to the Custodial Agent for payment to the holders of such Separate Notes in accordance with Section 5.02 or 5.03, as applicable, of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender tender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Great Plains Energy Inc)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesSenior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event or Special Event Redemption has occurred prior to such date, if the Company elects to conduct an Optional Early Remarketing during the Optional an Early Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Senior Notes at the applicable Remarketing Price. If the Remarketing Agent is unsuccessful on the first Early Remarketing Date during such Early Remarketing Period, a subsequent Remarketing shall be attempted (unless impracticable) by the Remarketing Agent on each of the two following Early Remarketing Dates in that Early Remarketing Period until a Successful Early Remarketing occurs. Upon the occurrence of any Failed Early Remarketing, unless a Termination Event or Special Event Redemption has occurred, the Company may elect to conduct additional Early Remarketings during the Early Remarketing Period. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Early Remarketing, as the Company may commence or postpone or cancel an Optional Early Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If In the case there is no Successful Optional Early Remarketing during the Optional any Early Remarketing Period or no Optional Early Remarketing occurs on any Optional Early Remarketing Date, if any, and unless a Termination Event or a Special Event Redemption has occurred prior to such date, on each the Final Remarketing Date or Dates in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Senior Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Final Remarketing Date in the Final Remarketing Period will be considered successful and no further attempts will be made if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to may not postpone the Final a Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of during the Final Remarketing Period.
(d) In connection with a each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the terms of the Senior Notes, including those which may be modified in connection with the Remarketing pursuant to the Indenture, including the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent (0.00001) per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Senior Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Senior Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the sole reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Senior Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i1) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesSenior Notes, other than to the Company, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii2) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter tothereafter) the DepositoryDepositary, the Purchase Contract Agent, the Collateral Agent and the CompanyCompany of any such Failed Remarketing. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Senior Notes will not be reset reset, and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the DepositoryDepositary, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined by the Debentures Remarketing Agent in such Remarketing and the aggregate principal amount number of Remarketed Debentures Senior Notes sold in such Remarketing;
(ii2) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures Senior Notes of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Senior Notes such purchaser is to purchase;
(iii3) each such purchaser (if other than a Depository Depositary Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Senior Notes purchased through the facilities of the DepositoryDepositary; and
(iv4) each such purchaser (or Depository Depositary Participant thereof) that the Remarketed Debentures Senior Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Senior Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Senior Notes underlying the Applicable Ownership Interests in Debentures Senior Notes that are components of the Corporate Units Units, shall be paid to the Collateral Agent in accordance with Section 5.02 or 5.03, as applicable, of the Purchase Contract and Pledge Agreement and (ii) with respect to the Separate Debentures, in each caseSenior Notes, shall be applied paid to the Custodial Agent for payment to the holders of such Separate Senior Notes in accordance with Section 5.02 or 5.03, as applicable, of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesSenior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender tender of Remarketed Debentures Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures Senior Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Autoliv Inc)
Appointment and Obligations of the Remarketing Agent. (a) The Company Fund hereby appoints [ • ] Xxxxxxx Xxxxx and Xxxxxxx Xxxxx hereby accepts such appointment as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] hereby accepts appointment as Remarketing Agent, Agent for the purpose of (i) setting the Applicable Dividend Rate on each series of the Shares from time to time; (ii) remarketing the Remarketed Debentures Shares from time to time on behalf of the holders Beneficial Owners thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, ; and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsBy-laws, all pursuant to the procedures set forth in the By-laws. The Fund shall have the right, on seven Business Days' notice to the Remarketing Agent, to appoint one or more additional Remarketing Agents with respect to the Shares or any series thereof under an agreement substantially in the form of this Agreement. Upon any such appointment, including any appointment of a successor Remarketing Agent pursuant to Section 4, all references in this Agreement to "Remarketing Agent" shall be deemed to refer also to each such additional or successor Remarketing Agent. Any such additional or successor Remarketing Agent shall accept its appointment by executing an agreement substantially in the form of this Agreement.
(b) Unless The Remarketing Agent agrees (i) to calculate the Maximum Dividend Rate applicable to each Dividend Period with respect to each series of the Shares; (ii) to use its best efforts to set in Remarketings the Applicable Dividend Rate on each series of the Shares; (iii) to notify the Fund promptly of the Applicable Dividend Rate with respect to each series of Shares; (iv) to use its best efforts to remarket the Shares tendered to the Remarketing Agent in Remarketings held from time to time as provided in the By-laws; and (v) to carry out such other duties as are assigned to the Remarketing Agent in the Bylaws, all in accordance with the provisions of the By-laws.
(c) The Remarketing Agent agrees that if, at any time, either Xxxxx'x or S&P shall not make available a Termination Event has occurred prior rating for the Shares required for the Remarketing Agent to calculate any Maximum Dividend Rate, or if both Xxxxx'x and S&P shall not make available such datea rating, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected Fund shall select one or more Substitute Rating Agencies for such purpose.
(d) It is expressly understood and agreed by the Company parties hereto that Shares as to which the Remarketing Agent is listed in the books maintained by the Paying Agent as the Beneficial Owner may be held by the Remarketing Agent for its own account or for the account of others.
(e) It is expressly understood and agreed by the parties hereto that the obligations of the Remarketing Agent hereunder are conditioned on the issuance and delivery of the Shares pursuant to the terms and conditions of the Purchase Contract Agreement. It is further understood and Pledge Agreementagreed by and between the parties that the Remarketing Agent shall not be obligated to set the Applicable Dividend Rate on the Shares of a series or to remarket Shares of a series during a Non-Payment Period for such series, or at any time that any of the conditions set forth in clauses (a) and (b) of Section 7 hereof shall not have been fully and completely met to the satisfaction of the Remarketing Agent with respect to such series or at any time any of the events set forth in clause (c) of Section 7 hereof shall have occurred with respect to such series.
(f) By 3:30 p.m. on each Remarketing Date for such series, the Remarketing Agent shall use its commercially reasonable efforts will advise the Paying Agent of (i) the Applicable Dividend Rate determined in the related Remarketing; (ii) the identities of (and the number of Shares of such series held by) the Beneficial Owners in whose names Shares of such series are to remarket be registered in the Remarketed Debentures at books maintained by the applicable Remarketing PricePaying Agent who purchased such Shares as a result of the Remarketing; and (iii) the identities of (and number of Shares of such series sold by) persons (i.e., former Beneficial Owners) in whose names Shares of such series were registered in the books maintained by the Paying Agent who sold Shares in the Remarketing. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, By 3:30 p.m. on any each Remarketing Date, the Remarketing Agent shall notify also advise the CompanyFund of the information set forth in clause (i) of this Section 2(f).
(g) As soon as practicable after the Date of Original Issue for the Shares of such series, but not later than the fifth Business Day after the Date of Original Issue for such Shares, the Collateral Remarketing Agent will provide the Paying Agent with (i) a list of the Beneficial Owners (other than the Remarketing Agent) in whose names Shares of such series are to be registered in the books to be maintained by the Paying Agent and the Quotation Agent respective numbers of the amount and issue Shares of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected such series acquired by such Beneficial Owners from the Remarketing Agent in its sole discretion in accordance with and (ii) the Purchase Contract number of Shares of such series they are holding as Beneficial Owners for their own account and Pledge Agreement. The Company will cause (on an aggregate basis) as nominee for the Quotation Agent to notify the Remarketing Agent account of others as of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on date of such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agentnotice.
(ch) If there is no Successful Optional The Remarketing during Agent shall promptly notify the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless Paying Agent by a Termination Event has occurred prior to such date, on each Remarketing Date notice substantially in the Final form of Exhibit A hereto of any transfers of Shares of such series outside a Remarketing Periodof which it is aware. Notwithstanding the foregoing, the Remarketing Agent shall use its commercially reasonable efforts not be required to remarket notify the Remarketed Debentures at the applicable Paying Agent of any transfer outside a Remarketing Priceunless such transfer would result in a new Beneficial Owner. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed Debentures, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures and the aggregate principal amount of Remarketed Debentures sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount of Remarketed Debentures such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed parties hereto that the Remarketing Agent shall not have be under no obligation to disclose to the Fund or the Paying Agent or any obligation whatsoever to purchase other person the identity of any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures person for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor whose account Shares are held by the Remarketing Agent shall be obligated as Beneficial Owner unless such disclosure is required by law or in connection with any case to provide funds to make payment upon surrender of pending or threatened legal proceedings involving the Remarketed Debentures for RemarketingFund or the Paying Agent.
(i) Notwithstanding anything The Remarketing Agent agrees that, whenever it receives the notice from the Fund contemplated by the first sentence of Section 3(m) of Part I of Section 12.1 of the Bylaws, it will in turn notify the Holders of Shares of such series and prospective purchasers believed by it to be interested in purchasing Shares of such series in such Remarketing.
(j) Xxxxxxx Xxxxx represents and warrants to the contrary hereinFund that Xxxxxxx Xxxxx & Co., it Inc. is understood the exclusive owner of the registered trademark "RP" and agreed that Xxxxxxx Xxxxx is authorized by Xxxxxxx Xxxxx & Co., Inc. to consent to the use by the Fund of such trademark, and, subject to the provisions of Section 9(c) hereof, hereby consents to the use by the Fund of such trademark in connection with the Shares.
(k) The Remarketing Agent may, in its sole discretion, as and to the extent permitted by the By-laws from time to time, modify the settlement procedures set forth in the By-laws so long as any such modification does not adversely affect the Beneficial Owners or the Holders of the Shares or the Fund. It is understood that a failure to settle a purchase or sale of tendered Shares in any Remarketing will not change the Applicable Dividend Rate previously set in such Remarketing, and will not result in any responsibility of, or liability to, the Company may electFund for settlement of such purchase or sale.
(l) The Remarketing Agent may, in consultation with its sole discretion, modify the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, procedures concerning notification of redemption set forth in the By-laws, provided that any such modification does not adversely affect any Holder or any Beneficial Owner of Shares or materially alter the obligations of the Paying Agent or the Fund; and further provided that, for so long as Xxxxx'x or S&P shall rate any Shares, the Fund receives confirmation from Xxxxx'x or S&P, as the case of floating-rate notesmay be, provide that any such modification would not impair the interest rate on ratings then assigned by Xxxxx'x or S&P, as the Debentures shall be equal case may be, to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate)Shares.
Appears in 1 contract
Samples: Remarketing Agreement (Putnam Municipal Opportunities Trust)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Lehman Brothers Inc. as exclusive remarketing agent (the exclusive "Remarketing AgentXxxxx"), and, subject to the terms and conditions set forth herein, [ • ] hereby Lehman Brothers Inc. accepts appointment as Remarketing Agent, Agent for the purpose xxxxxse of (i) remarketing the Remarketed Debentures Securities on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior Upon delivery of notice to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected Agent by the Company pursuant of the Company's election to conduct a Remarketing in conformity with the Purchase Contract and Pledge Agreementrequirements of the Remarketing Procedures, the Remarketing Agent shall agrees (i) to use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when Securities tendered or deemed tendered to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion any Remarketing, (ii) to notify the Company of the new Fixed Rate, if any, established pursuant to any Remarketing and (iii) to carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify provisions of the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing AgentProcedures.
(c) If there On any date during which a Remarketing is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Periodbeing conducted, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Securities tendered or deemed tendered for purchase at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least a price equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior (i) $100 per share, with respect to the last two Business Days of Series A Preferred Stock, or (ii) $25 per share, with respect to the Final Remarketing PeriodSeries B Preferred Stock.
(d) In connection with If, as a Remarketingresult of the Remarketing Agent's efforts described in Section 1(c), the Remarketing Agent has determined on any date during which a Remarketing is being conducted that it will be able to remarket all Remarketed Securities tendered or deemed tendered for purchase at a price of $100 per share, in the case of shares of the Series A Preferred Stock (the "Series A Remarketing Purchase Price"), or $25 per share, in the case of shares of the Series B Preferred Stock (the "Series B Remarketing Purchase Price"), in each case, prior to 4:00 P.M., New York City time, on such date (any such date of determination, a "Remarketing Date"), the Remarketing Agent shall determinedetermine the Fixed Rate resulting from such Remarketing and to be applicable to the next succeeding Fixed Rate Period, in consultation with the Company, which shall be the rate per annum, annum (rounded to the nearest one-thousandth (0.0010.01) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of which the Remarketing Agent determines, in its sole judgment, to be the lowest rate per annum, if any, that will enable it to remarket all of Remarketed Securities tendered or deemed tendered for Remarketing at the Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable lawPurchase Price.
(e) IfIf any holder of Preferred Stock submits a Notice of Election to tender some or all of its shares of Preferred Stock in a Remarketing and separately notifies the Remarketing Agent that such holder desires to continue to hold a number of shares of Preferred Stock, but only if the Fixed Rate determined by 4:00 p.m.the applicable Remarketing is not less than a specified rate per annum, the Remarketing Agent shall give priority to such holder's purchase of such number of Remarketed Securities in the Remarketing, provided that the new Fixed Rate is not less than such specified rate.
(f) By approximately 4:30 P.M., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed Debentures, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
advise (i) the DepositoryClearing Agency Participant who will receive a credit for the shares of Preferred Stock on the Clearing Agency's records, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent Company and the Company (and promptly deliver a notice in writing to such Persons thereafter) Calculation Agent of the Reset any new Fixed Rate with respect established pursuant to the Debentures Remarketing and the aggregate principal amount number of Remarketed Debentures Securities sold in such the Remarketing;
, (ii) each purchaser of Remarketed Securities (or the Depository Clearing Agency Participant thereof) of Remarketed Debentures of the Reset such new Fixed Rate and the aggregate principal amount number of Remarketed Debentures Securities such purchaser is to purchase;
purchase and (iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Clearing Agency Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Securities purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the RemarketingClearing Agency Participant.
(g) The proceeds from a Successful If, by 4:00 P.M., New York City time, on the third business day prior to the Remarketing Settlement Date applicable to the Remarketing (isuch third business day, a "Remarketing Expiration Date") the Remarketing Agent is unable to remarket all Remarketed Securities tendered or deemed tendered for purchase at the Series A Remarketing Purchase Price or the Series B Remarketing Purchase Price, as applicable, the Remarketing Agent shall, by approximately 4:30 P.M., New York City time, on such date, advise the Clearing Agency Participant, the Company and the Calculation Agent that the Dividend Rate for the Series A Preferred Stock and/or the Series B Preferred Stock, as applicable, for the next succeeding Dividend Period will be a Floating Rate determined in accordance with respect to the Debentures underlying Series A Certificate of Designations and/or the Applicable Ownership Interests in Debentures that are components Series B Certificate of the Corporate Units and (ii) with respect to the Separate DebenturesDesignations, in each as applicable. In such case, no shares of Series A Preferred Stock or Series B Preferred Stock, as applicable, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether sold in the Remarketing or otherwise, and each holder shall in no way be obligated continue to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk hold its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketingrespective shares at such Floating Rate.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Remarketing Agreement (Principal Financial Group Inc)
Appointment and Obligations of the Remarketing Agent. (a) The Company Subject to Section 4 of this Agreement, the Administrator hereby appoints [ • ] Credit Suisse, and Credit Suisse hereby accepts such appointment, as Remarketing Agent who, together with Merrill, will serve as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] hereby accepts appointment as Remarketing Agent, Agents for the purpose of of:
(i) remarketing determining for each Reset Period the Remarketed Debentures on behalf applicable Spread above or below the applicable index (if the Notes will be in a floating rate mode during the next Reset Period) or determining the fixed rate of interest (if the Notes will be in a fixed rate mode during the next Reset Period), as applicable (in each case, as specified in the applicable Supplemental Remarketing Agency Agreement, as defined below), at a rate that, in the reasonable opinion of the holders thereofRemarketing Agents, will enable them to remarket tendered Notes (whether mandatory or voluntary) at 100% of the principal amount thereof and on the terms of the Notes determined as set forth in Section 4(c) of the Reset Rate Note Procedures;
(ii) determining, in consultation entering into a remarketing agency agreement on the related Remarketing Terms Determination Date with the CompanyTrust and the Administrator, substantially in the manner provided for herein form attached to this Agreement as Appendix B (a “Remarketing Agency Agreement”), and a supplemental remarketing agency agreement on the related Spread Determination Date with the Trust and the Administrator, substantially in the Purchase Contract form attached to this Agreement as Appendix C (a “Supplemental Remarketing Agency Agreement”), pursuant to which the Remarketing Agents will attempt, on a reasonable efforts basis, to remarket the Notes tendered by the beneficial owners thereof (the “Beneficial Owners”) (each such attempted and/or completed remarketing being hereinafter referred to as a “Remarketing”);
(iii) if applicable, assisting the Administrator with the selection of the Eligible Swap Counterparty or Counterparties with which the trust will enter into Swap Agreements on the related Reset Date;
(iv) preparing a written notice to the applicable clearing agencies, the Luxembourg Stock Exchange (if the Notes are then listed on such exchange) and Pledge Agreement any other relevant parties setting forth the applicable Spread or fixed rate of interest, as the case may be, any applicable currency exchange rate and any other required reset terms;
(v) delivering the Supplemental Indenturerelated Hold Notices, the Listing Particulars Addendum (as defined below) and any other notices as provided under the Reset Rate for the Debentures, and Note Procedures; and
(iiivi) performing such other duties as are assigned to the Remarketing Agent in this Agreement, including in the Transaction DocumentsReset Rate Note Procedures attached to this Agreement as Appendix D, and/or in the applicable Remarketing Agency Agreement and Supplemental Remarketing Agency Agreement, in each case subject to the conditions set forth herein and therein.
(b) Unless a Termination Event has occurred prior With respect to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Reset Date, the Remarketing Agent shall notify not enter into the Company, Remarketing Agency Agreement with the Collateral Agent Trust and the Quotation Agent Administrator if, on or prior to the Remarketing Terms Determination Date: (i) a Failed Remarketing shall have been declared with respect to the related class of Notes subject to Remarketing on such Reset Date; or (ii) the amount and issue related Call Option shall have been timely exercised with respect to the related class of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury PortfolioNotes subject to Remarketing on such Reset Date. In addition, which will be selected by the Remarketing Agent in its sole discretion in accordance shall not enter into the Supplemental Remarketing Agency Agreement with the Purchase Contract Trust and Pledge Agreement. The Company will cause the Quotation Agent Administrator if, on or prior to notify the Spread Determination Date: (A) a Failed Remarketing Agent shall have been declared with respect to the related class of Notes subject to Remarketing on such Reset Date; (B) the related Call Option shall have been timely exercised with respect to the related class of Notes subject to Remarketing on such Reset Date; or (C) if applicable, 100% of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time holders of the related class of Notes subject to Remarketing on such Remarketing Date. If Reset Date have timely delivered a Hold Notice and the Remarketing Agent is also acting as Quotation Agent, All Hold Rate will apply for the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agentnext related Reset Period.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior Only Notes not subject to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent an exercised Call Option shall use its commercially reasonable efforts be subject to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable lawDate.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed Debentures, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures and the aggregate principal amount of Remarketed Debentures sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount of Remarketed Debentures such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Remarketing Agreement (SLM Student Loan Trust 2005-6)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] as the exclusive Remarketing Agent and Reset Agent, and, subject to the terms and conditions set forth herein, [ • ] hereby accepts appointment as Remarketing Agentsuch appointment, for the purpose of (i) remarketing the Remarketing Remarketed Debentures Preferred Securities on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent and Reset Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior The Remarketing Agent agrees (i) to such date, if use its commercially reasonable best efforts to remarket the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant Remarketed Preferred Securities tendered or deemed tendered to the Purchase Contract Remarketing Agent in the Remarketing, (ii) to notify the Company, the Depositary, the Property Trustee and Pledge Agreementthe Trustee promptly of the Reset Rate and (iii) to establish the Reset Rate and carry out such other duties as are assigned to the Remarketing Agent and Reset Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures.
(c) On the Remarketing Date, the Remarketing Agent shall use its commercially reasonable best efforts to remarket remarket, at a price equal to 100.5% of the Remarketing Value, the Remarketed Debentures at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence Preferred Securities tendered or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Perioddeemed tendered for purchase.
(d) In connection with If, as a Remarketingresult of the efforts described in Section l(b), the Remarketing Agent shall determinedetermines, in after consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects that it will be able to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the all Remarketed Debentures should bear (such fixed Preferred Securities tendered or floating rate, the “Reset Rate”) in order deemed tendered for the Remarketed Debentures to have an aggregate market value equal to purchase at least the applicable Remarketing Price and that in the reasonable discretion a price of 100.5% of the Remarketing Agent will enable it Value prior to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent, after consultation with the Company, shall (i) determine the rate of interest (the "Reset Rate") that will enable it to remarket all Remarketed Preferred Securities tendered or deemed tendered for Remarketing and (ii) commit to purchase, on a third-day settlement basis, and on the third Business Day following the Remarketing Date (the "Remarketing Closing Date"), shall purchase, the Agent-purchased Treasury Consideration.
(e) If the Remarketing Agent is unable to Remarket all of cannot remarket the Remarketed Debentures, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate Preferred Securities on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall adviseuse its commercially reasonable best efforts to attempt to remarket Preferred Securities on each of the two Business Days immediately following the Remarketing Date and, by telephone:
if necessary, on each of the three Business Days immediately preceding November 1, 2004, and if necessary, on each of the three Business Days immediately preceding the Stock Purchase Date in accordance with the Remarketing Procedures (each such remarketing, the "Subsequent Remarketing"), provided that (i) the Depository, notice of any Subsequent Remarketing cannot be given until the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a Failed Remarketing notice has been published in writing to such Persons thereafter) of the Reset Rate accordance with respect to the Debentures and the aggregate principal amount of Remarketed Debentures sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount of Remarketed Debentures such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date Procedures in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time respect of any such trade to prevent failed settlement. The immediately preceding Failed Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have Closing Date in respect of any obligation whatsoever to purchase any Remarketed Debentures, whether in the Subsequent Remarketing or otherwise, and shall in must fall no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate later than on the Debentures shall be equal to an index selected by Business Day immediately preceding the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate)Stock Purchase Date.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Xxxxxx Xxxxxxx & Co. Incorporated as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] Xxxxxx Xxxxxxx & Co. Incorporated hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Special Event Redemption or a Termination Event has occurred prior to such dateoccurred, if on the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to fifth Business Day immediately preceding the Purchase Contract and Pledge AgreementSettlement Date (the “Initial Remarketing Date”), the Remarketing Agent shall use its commercially reasonable efforts to remarket (“Initial Remarketing”) the Remarketed Debentures Notes, at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional In the case of a Failed Remarketing during on the Optional Initial Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, Date and unless a Special Event Redemption or a Termination Event has occurred prior to such dateoccurred, on each the fourth Business Day immediately preceding the Purchase Contract Settlement Date (the “Second Remarketing Date in the Final Remarketing PeriodDate”), the Remarketing Agent shall use its commercially reasonable efforts to remarket (the “Second Remarketing”) the Remarketed Debentures Notes at the applicable Remarketing Price. In the case of a Failed Remarketing on the Second Remarketing Date and unless a Special Event Redemption or a Termination Event has occurred, on the third Business Day immediately preceding the Purchase Contract Settlement Date (the “Final Remarketing Date”), the Remarketing Agent shall use its reasonable efforts to remarket (the “Final Remarketing”) the Remarketed Notes at the Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful and no further attempts will be made if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the terms of the notes, including those which may be modified in connection with the remarketing pursuant to the Indenture, including the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the sole reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i1) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesNotes, other than to the Company, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii2) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the a Failed Remarketing shall be deemed to have occurred. The Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDepositary, the Purchase Contract Agent, the Collateral Agent and the CompanyCompany of any such Failed Remarketing. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the DepositoryDepositary, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined by the Debentures Remarketing Agent in such Remarketing and the aggregate principal amount number of Remarketed Debentures Notes sold in such Remarketing;
(ii2) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures Notes of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Notes such purchaser is to purchase;
(iii3) each such purchaser (if other than a Depository Depositary Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the DepositoryDepositary; and
(iv4) each such purchaser (or Depository Depositary Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date, and, in the case of the Initial Remarketing Date or the Second Remarketing, the Remarketing Settlement Date will be five Business Days or four Business Days, respectively, following the date of such Remarketing and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units Units, shall be paid to the Collateral Agent in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement and (ii) with respect to the Separate Debentures, in each caseNotes, shall be applied paid to the Custodial Agent for payment to the holders of such Separate Notes in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) The right of each holder of Remarketed Notes to have such Remarketed Notes remarketed and sold on any Remarketing Date shall be subject to the conditions that (i) the Remarketing Agent conducts (A) an Initial Remarketing, (B) a Second Remarketing in the event of a Failed Remarketing on the Initial Remarketing Date and (C) a Final Remarketing in the event of a Failed Remarketing on the Second Remarketing Date, each pursuant to the terms of this Agreement, (ii) neither a Special Event Redemption nor a Termination Event has occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Notes at the Remarketing Price based on the Reset Rate, and (iv) such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agent as and when required.
(i) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender tender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (E Trade Financial Corp)
Appointment and Obligations of the Remarketing Agent. (a) The Trust and the Company hereby appoints [ • ] appoint Xxxxxx Brothers Inc., as exclusive remarketing agent (the exclusive "Remarketing Agent"), and, subject to the terms and conditions set forth herein, [ • ] hereby Xxxxxx Brothers Inc. accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Securities on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the The Remarketing Agent shall agrees (i) to use its commercially reasonable efforts to remarket the Remarketed Debentures at Securities tendered or deemed tendered to the applicable Remarketing Price. For Agent in the avoidance Remarketing, (ii) to notify each Issuer of doubtthe Remarketed Securities promptly of the Adjusted Distribution Rate and (iii) to carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures.
(c) The Remarketing Agent represents and warrants to the Company shall determine that it will remarket the Remarketed Securities upon the terms and conditions set forth in its sole discretion if this Agreement and when to attempt an Optional Remarketing, as in the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In Offering Materials.
(d) On the case of an Optional Remarketing, on any Scheduled Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent use commercially reasonable efforts to remarket at a price equal to 100% of the amount and issue of the U.S. Treasury securities (liquidation or principal amount thereof, Remarketed Securities tendered or interest strips thereof) that will constitute the Treasury Portfoliodeemed tendered for purchase. Prior to 4:00 P.M., which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time time, on such the Scheduled Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket determine the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will Adjusted Distribution Rate, which shall be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of which the Remarketing Agent determines, in its sole judgment, to be the lowest rate per annum, if any, not exceeding the Maximum Adjusted Distribution Rate that will enable it to remarket all Remarketed Securities tendered or deemed tendered for remarketing at a price of the $1,000 per Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable lawSecurity.
(e) IfIf any holder of Remarketed Securities timely delivered a Notice of Election to tender such Remarketed Securities and separately notifies the Remarketing Agent that such holder desires to purchase a number of Remarketed Securities in the Remarketing, by 4:00 p.m.but only if the Adjusted Distribution Rate is not less than a specified rate per annum, the Remarketing Agent shall give priority to such holder's purchase of such number of Remarketed Securities in the Remarketing, provided that the Adjusted Distribution Rate is not less than such specified rate.
(f) By approximately 4:30 P.M., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed Debentures, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Scheduled Remarketing Date, the Remarketing Agent shall advise, by telephone:
telephone (i) the DepositoryDepositary, the Purchase Contract Agent, the Property Trustee, the Collateral Agent, Indenture Trustee and each Issuer of the Custodial Agent Remarketed Securities of the Adjusted Distribution Rate and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures and the aggregate principal amount number of Remarketed Debentures Securities sold in such the Remarketing;
, (ii) each purchaser of Remarketed Securities (or the Depository Depositary Participant thereof) of Remarketed Debentures of the Reset Adjusted Distribution Rate and the aggregate principal amount number of Remarketed Debentures Securities such purchaser is to purchase;
purchase and (iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Securities purchased through the facilities of the Depository; andDepositary.
(ivg) each such purchaser (If the Remarketing Agent is unable to remarket by 4:00 P.M., New York City time, on the Scheduled Remarketing Date all Remarketed Securities tendered or Depository Participant thereof) deemed tendered for purchase at a price of $1,000 per Remarketed Security and receives notice from the Indenture Trustee that the Remarketed Debentures will Company has deposited with the Indenture Trustee, not be delivered until later than 12 Noon, New York City time, on the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased Business Day prior to the second Business Day preceding related Scheduled Remarketing Settlement Date, sufficient moneys to redeem Debentures in a principal amount equal to the liquidation or principal amount of the Remarketed Securities not so remarketed, then the Remarketing Agent shall make payment to the Depositary Participant of each tendering holder of Remarketed Securities by the close of business on the Remarketing Settlement Date, against delivery through the facilities of the Depositary of such purchaser will holder's tendered Remarketed Securities, of the purchase price for such tendered Remarketed Securities sold in the Remarketing. If the Company shall not have to specify an alternative settlement cycle at the time of any deposited such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity moneys with the requirements of the Securities ActIndenture Trustee prior to such time, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender to such Depositary Participant of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketingsuch purchase price.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Xxxxxx Brothers Inc. as exclusive remarketing agent (the exclusive "Remarketing Agent"), and, subject to the terms and conditions set forth herein, [ • ] hereby Xxxxxx Brothers Inc. accepts appointment as Remarketing Agent, Agent for the purpose of (i) remarketing the Remarketed Debentures Securities on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior Upon delivery of notice to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected Agent by the Company pursuant of the Company's election to conduct a Remarketing in conformity with the Purchase Contract and Pledge Agreementrequirements of the Remarketing Procedures, the Remarketing Agent shall agrees (i) to use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when Securities tendered or deemed tendered to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion any Remarketing, (ii) to notify the Company promptly of the new Fixed Rate, if any, established pursuant to any Remarketing and (iii) to carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify provisions of the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing AgentProcedures.
(c) If there On any date during which a Remarketing is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Periodbeing conducted, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Securities tendered or deemed tendered for purchase at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least a price equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior $25 per share, with respect to the last two Business Days of the Final Remarketing PeriodPreferred Stock.
(d) In connection with If, as a Remarketingresult of the Remarketing Agent's efforts described in Section 1(c), the Remarketing Agent has determined on any date during which a Remarketing is being conducted that it will be able to remarket all Remarketed Securities tendered or deemed tendered for purchase at a price of $25 per share (the "Remarketing Purchase Price") prior to 4:00 P.M., New York City time, on such date (any such date of determination, a "Remarketing Date"), the Remarketing Agent shall determinedetermine the Fixed Rate resulting from such Remarketing and to be applicable to the next succeeding Fixed Rate Period, in consultation with the Company, which shall be the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of which the Remarketing Agent determines, in its sole judgment, to be the lowest rate per annum, if any, that will enable it to remarket all of Remarketed Securities tendered or deemed tendered for Remarketing at the Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable lawPurchase Price.
(e) IfIf any holder of Preferred Stock submits a Notice of Election to tender some or all of its shares of Preferred Stock in a Remarketing and separately notifies the Remarketing Agent that such holder desires to continue to hold a number of shares of Preferred Stock, but only if the Fixed Rate determined by 4:00 p.m.the applicable Remarketing is not less than a specified rate per annum, the Remarketing Agent shall give priority to such holder's purchase of such number of Remarketed Securities in the Remarketing, provided that the new Fixed Rate is not less than such specified rate.
(f) By approximately 4:30 P.M., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed Debentures, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
, (i) the DepositoryClearing Agency Participant who will receive a credit for the shares of Preferred Stock on the Clearing Agency's records, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent Company and the Company (and promptly deliver a notice in writing to such Persons thereafter) Calculation Agent of the Reset any new Fixed Rate with respect established pursuant to the Debentures Remarketing and the aggregate principal amount number of Remarketed Debentures Securities sold in such the Remarketing;
, (ii) each purchaser of Remarketed Securities (or the Depository Clearing Agency Participant thereof) of Remarketed Debentures of the Reset such new Fixed Rate and the aggregate principal amount number of Remarketed Debentures Securities such purchaser is to purchase;
purchase and (iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Clearing Agency Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Securities purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the RemarketingClearing Agency Participant.
(g) The proceeds from a Successful If, by 4:00 P.M., New York City time, on the third business day prior to the Remarketing Settlement Date applicable to the Remarketing (isuch third business day, a "Remarketing Expiration Date") with respect the Remarketing Agent is unable to remarket all Remarketed Securities tendered or deemed tendered for purchase at the Debentures underlying Remarketing Purchase Price, the Applicable Ownership Interests in Debentures Remarketing Agent shall, by approximately 4:30 P.M., New York City time, on such date, advise, by telephone, the Clearing Agency Participant, the Company and the Calculation Agent that are components of the Corporate Units and (ii) with respect to Dividend Rate for the Separate Debentures, in each case, shall Preferred Stock for the next succeeding Dividend Period will be applied a Floating Rate determined in accordance with Section 5.02 the Certificate of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent Designations. In such case, no shares of Preferred Stock shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether be sold in the Remarketing or otherwise, and each holder shall in no way be obligated continue to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk hold its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketingrespective shares at such Floating Rate.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company and PPL Capital Funding hereby appoints [ • appoint [•] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • [•] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the CompanyCompany and PPL Capital Funding, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the an Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the any Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two five Business Days of the Final Remarketing Period.
(d) In connection with a each Remarketing, the Remarketing Agent shall determine, in consultation with the CompanyCompany and PPL Capital Funding, the terms of the Remarketed Notes for each tranche, including those which may be modified in connection with the Remarketing pursuant to the Indenture, including the election whether to modify the optional redemption provisions, interest payment dates and/or the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, ordetermined on a fixed or floating rate basis, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the sole reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes of such tranche at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesNotes, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter tothereafter) the DepositoryDepositary, the Purchase Contract Agent, the Collateral Agent and the CompanyCompany of any such Failed Remarketing. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset reset, and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone, as to each tranche of Remarketed Notes:
(i) the DepositoryDepositary, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent Trustee and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to Rate, interest payment dates, maturity date and optional redemption terms, if any, determined by the Debentures Remarketing Agent in such Remarketing and the aggregate principal amount of Remarketed Debentures Notes sold in such Remarketing;
(ii) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures Notes of the Reset Rate Rate, interest payment dates, maturity date, and optional redemption terms, if any, and the aggregate principal amount of Remarketed Debentures Notes such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Depositary Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the DepositoryDepositary; and
(iv) each such purchaser (or Depository Depositary Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units Units, shall be applied in accordance with Section 5.02, of the Purchase Contract and Pledge Agreement and (ii) with respect to the Separate Debentures, in each caseNotes, shall be applied in accordance with Section 5.02 5.02, of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender tender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company Issuers nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company and the Trust (together, the "ISSUERS") hereby appoints [ • ] appoint Xxxxxx Brothers Inc. as exclusive remarketing agent (the exclusive Remarketing Agent"REMARKETING AGENT"), and, subject to the terms and conditions set forth herein, [ • ] Xxxxxx Brothers Inc. hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Remarketing Securities on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior The Remarketing Agent agrees to:
(i) use its commercially reasonable efforts to such date, if remarket the Company elects Remarketing Securities deemed tendered to conduct an Optional the Remarketing during Agent in the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge AgreementRemarketing Procedures;
(ii) notify the Issuers promptly of the Reset Rate; and
(iii) carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures.
(c) On the third Business Day immediately preceding the Remarketing Settlement Date (the "REMARKETING DATE"), the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Remarketing Securities, at a price equal to:
(i) 100% of the applicable aggregate Accreted Value thereof as of the end of the day on the day next preceding the Remarketing Price. For Settlement Date; or
(ii) on the avoidance Maturity Remarketing Date, 100% of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketingstated liquidation amount of the Preferred Securities or the principal amount at maturity of the Debentures, as the Company case may commence or postpone or cancel an Optional be.
(d) If, as a result of the efforts described in Section 1(b), the Remarketing Agent determines that it will be able to remarket all Remarketing Securities deemed tendered for purchase at the purchase price set forth in its absolute and sole discretion. In Section 1(c) prior to 4:00 p.m. (New York City time) on the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify determine the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury PortfolioReset Rate, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread ) that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent reasonably determines, in good faith after consultation with the Company, to be the lowest distribution rate or interest rate, as applicable, per annum that will enable it to remarket all Remarketing Securities deemed tendered for Remarketing. In the event of a Remarketing:
(i) in connection with a Remarketing upon a Trading Remarketing Event or a Legal Cause Remarketing Event, the Accreted Value of the Remarketed Debentures at no less than as of the applicable end of the day on the day next preceding the Remarketing Price Settlement Date shall become due on the date which is 93 days following the Remarketing Settlement Date, and, as a result, the Accreted Value of the Preferred Securities as of the end of the day on the day next preceding the Remarketing Settlement Date shall be redeemed on the date which is 93 days following the Remarketing Settlement Date;
(ii) in such Remarketing; provided that such connection with a Remarketing upon a Trading Remarketing Event or a Legal Cause Remarketing Event, on the Remarketing Settlement Date, the rate of interest per annum on the Accreted Value of the Debentures shall become the Reset Rate on the Accreted Value of the Preferred Securities that is determined pursuant to the Remarketing of the Preferred Securities, and, as a result, the Distribution rate per annum on the Accreted Value of the Preferred Securities shall not exceed become the maximum Reset Rate established in the Remarketing of the Preferred Securities;
(iii) as of the Remarketing Settlement Date, interest rate permitted by applicable lawaccrued and unpaid on the Debentures (including any accrued and unpaid interest deferred during an Extension Period (as defined in the Indenture) and any accrued and unpaid Compounded Interest (as defined in the Indenture) from and including the immediately preceding Interest Payment Date to, but excluding, the Remarketing Settlement Date shall be payable to the holders of the Debentures on the Special Record Date (as defined in the Indenture) and, as a result, Distributions accumulated and unpaid on the Preferred Securities from and including the immediately preceding Distribution Date to, but excluding, the Remarketing Settlement Date shall be payable to the Holders of the Preferred Securities on the Special Record Date (as defined in the Trust Agreement); and
(iv) in connection with a Remarketing upon a Trading Remarketing Event or a Legal Cause Remarketing Event, the Company shall be obligated to redeem the Warrants on the Remarketing Settlement Date at a redemption price per Warrant equal to the Warrant Redemption Amount as of the end of the day on the day next preceding the Remarketing Date.
(e) If none of the holders of Remarketing Securities elects to have Remarketing Securities remarketed in the Remarketing, the Remarketing Agent shall reasonably determine, in good faith after consultation with the Company, the distribution rate or interest rate, as applicable, that would have been established had a Remarketing been held on the Remarketing Date, and such rate shall be the Reset Rate, and the related modifications to the other terms of the Preferred Securities and to the terms of the Debentures and the Warrants shall be effective as of the Remarketing Date.
(f) If, by 4:00 p.m., p.m. (New York City time, ) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesRemarketing Securities deemed tendered for purchase, at a price not less than the applicable failed Remarketing Price pursuant (a "FAILED REMARKETING") shall be deemed to the terms have occurred, and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall so advise by telephone (and promptly deliver a notice confirmed in writing thereafter towriting) the DepositoryThe Depository Trust Company ("DTC"), the Purchase Contract AgentProperty Trustee, the Collateral Agent Debenture Trustee, the Administrative Trustees and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing:
(i) the Accreted Value of all outstanding Debentures as of the end of the day on the day next preceding the Remarketing Settlement Date shall become due on the date which is 93 days following the Failed Remarketing Settlement Date, and (if applicable), as a result, the applicable interest rate Accreted Value of the Preferred Securities as of the end of the day on the day next preceding the Remarketing Settlement Date shall be redeemed on the date which is 93 days following the Remarketing Settlement Date with respect to such Failed Remarketing;
(ii) the rate of interest per annum on the Accreted Value of the Debentures shall become the Reset Rate, and (if applicable), as a result, the rate of Distribution per annum on the Accreted Value of the Preferred Securities shall become the Reset Rate;
(iii) pursuant to the Indenture, the Company no longer shall have the option to defer payments of interest on the Debentures; and
(iv) each holder which is a holder of record as of a Special Record Date, will not be reset receive accrued and will continue to be unpaid distributions to, but excluding, the Coupon Rate set forth in the Supplemental IndentureRemarketing Settlement Date.
(fg) In the event of a Successful Remarketing, by By approximately 4:30 p.m., p.m. (New York City time, ) on the applicable Remarketing Date, provided that there has not been a Failed Remarketing, the Remarketing Agent shall advise, by telephone:telephone (promptly confirmed in writing):
(i) the DepositoryDTC, the Purchase Contract Agent, the Property Trustee, the Collateral Agent, the Custodial Agent Debenture Trustee and the Company (and promptly deliver a notice in writing to such Persons thereafter) Issuers of the Reset Rate with respect to determined in the Debentures Remarketing and the number of Remarketing Securities (or, if applicable, aggregate principal amount of Remarketed Debentures Remarketing Securities) sold in such the Remarketing;,
(ii) each purchaser (or the Depository Participant thereoftheir DTC participant) of Remarketed Debentures of the Reset Rate and the number of Remarketing Securities (or, if applicable, aggregate principal amount of Remarketed Debentures Remarketing Securities) such purchaser is to purchase;; and
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant DTC participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Remarketing Securities purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the RemarketingDTC.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Remarketing Agreement (Reinsurance Group of America Inc)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Xxxxxxx Xxxxx Xxxxxx Inc. as exclusive remarketing agent (the exclusive "Remarketing Agent"), and, subject to the terms and conditions set forth herein, [ • ] Xxxxxxx Xxxxx Barney Inc. hereby accepts appointment as Remarketing Agent, for the purpose of (i1) remarketing Remarketing the Remarketed Debentures Remarketing Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, thereof and (iii2) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior The Remarketing Agent agrees to such date, if (1) use commercially reasonable efforts to remarket the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant Senior Notes tendered or deemed tendered to the Purchase Contract Remarketing Agent in the Remarketing, (2) provide prompt notice of the Reset Rate as set forth in this Agreement and Pledge Agreement(3) carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures.
(c) On February 15, 2006 (the "Initial Remarketing Date"), the Remarketing Agent shall use its commercially reasonable efforts to remarket (the Remarketed Debentures "Initial Remarketing") the Remarketing Senior Notes at a price at least equal to the applicable Remarketing PriceValue pursuant to the Remarketing Procedures. For the avoidance If, as a result of doubtsuch efforts, the Company shall determine in its sole discretion if and when Remarketing Agent determines that it will be able to attempt an Optional Remarketing, as remarket all of the Company may commence Remarketing Senior Notes tendered or postpone or cancel an Optional deemed tendered for purchase at a price at least equal to the Remarketing in its absolute and sole discretion. In Value prior to 4:00 p.m. (New York City time) on the case of an Optional Remarketing, on any Initial Remarketing Date, the Remarketing Agent shall notify determine the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) Reset Rate that will constitute enable it to remarket all Remarketing Senior Notes tendered or deemed tendered for Remarketing at an interest rate on the Treasury Portfolio, which will be selected by Initial Remarketing Date sufficient to allow the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein occur at a price equal to the Remarketing AgentValue.
(cd) If there is no Successful Optional Remarketing during If, despite the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date commercially reasonable efforts described in the Final Remarketing Periodpreceding paragraph, the Remarketing Agent shall cannot remarket the Remarketing Senior Notes on the Initial Remarketing Date, the Remarketing Agent will continue to use its commercially reasonable efforts to remarket the Remarketed Debentures Remarketing Senior Notes (i) on one or more subsequent occasions from the Initial Remarketing Date to, and including, the ninth Business Day preceding the Purchase Contract Settlement Date and (ii) if necessary, on the third Business Day preceding the Purchase Contract Settlement Date, and in connection therewith to determine the Reset Rate at an interest rate on the applicable Remarketing Price. It is understood Date, if any, sufficient to allow the Remarketing at a price equal to the Remarketing Value as set forth herein and agreed that (each such subsequent Remarketing up to and including the ninth Business Day preceding the Purchase Contract Settlement Date being referred to as a "Subsequent Remarketing" and each such date to be referred to as, a "Subsequent Remarketing Date"; and the Remarketing on any the third Business Day preceding the Purchase Contract Settlement Date, being referred to as the "Final Remarketing" and such date to be referred to as, the "Final Remarketing Date Date;"), in each case in accordance with the Remarketing Procedures; provided, however, that, the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, if at all, must occur no later than on the Remarketing Agent shall determine, in consultation with third Business Day immediately preceding the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable lawPurchase Contract Settlement Date.
(e) IfIf the Initial Remarketing, by 4:00 p.m.any Subsequent Remarketing or the Final Remarketing is successful (respectively, New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all a "Successful Initial Remarketing," a "Successful Subsequent Remarketing" or a "Successful Final Remarketing"; any of the Remarketed Debenturesforegoing, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent "Successful Remarketing"; and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event date of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable "Remarketing Date"), the Remarketing Agent shall advise, by telephonethen:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures and the aggregate principal amount of Remarketed Debentures sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount of Remarketed Debentures such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Remarketing Agreement (Dominion Resources Inc /Va/)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Citigroup Global Markets Inc. (as successor to Xxxxxxx Xxxxx Xxxxxx Inc.) as exclusive remarketing agent (the exclusive “Remarketing Agent”), and, subject to the terms and conditions set forth herein, [ • ] Citigroup Global Markets Inc. hereby accepts appointment as Remarketing Agent, for the purpose of (i1) remarketing Remarketing the Remarketed Debentures Remarketing Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, thereof and (iii2) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior The Remarketing Agent agrees to such date, if (1) use commercially reasonable efforts to remarket the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant Senior Notes tendered or deemed tendered to the Purchase Contract Remarketing Agent in the Remarketing, (2) provide prompt notice of the Reset Rate as set forth in this Agreement and Pledge Agreement(3) carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures.
(c) On February 15, 2006 (the “Initial Remarketing Date”), the Remarketing Agent shall use its commercially reasonable efforts to remarket (the Remarketed Debentures “Initial Remarketing”) the Remarketing Senior Notes at a price at least equal to the applicable Remarketing PriceValue pursuant to the Remarketing Procedures. For the avoidance If, as a result of doubtsuch efforts, the Company shall determine in its sole discretion if and when Remarketing Agent determines that it will be able to attempt an Optional Remarketing, as remarket all of the Company may commence Remarketing Senior Notes tendered or postpone or cancel an Optional deemed tendered for purchase at a price at least equal to the Remarketing in its absolute and sole discretion. In Value prior to 4:00 p.m. (New York City time) on the case of an Optional Remarketing, on any Initial Remarketing Date, the Remarketing Agent shall notify determine the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) Reset Rate that will constitute enable it to remarket all Remarketing Senior Notes tendered or deemed tendered for Remarketing at an interest rate on the Treasury Portfolio, which will be selected by Initial Remarketing Date sufficient to allow the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein occur at a price equal to the Remarketing AgentValue.
(cd) If there is no Successful Optional Remarketing during If, despite the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date commercially reasonable efforts described in the Final Remarketing Periodpreceding paragraph, the Remarketing Agent shall cannot remarket the Remarketing Senior Notes on the Initial Remarketing Date, the Remarketing Agent will continue to use its commercially reasonable efforts to remarket the Remarketed Debentures Remarketing Senior Notes (i) on one or more subsequent occasions from the Initial Remarketing Date to, and including, the ninth Business Day preceding the Purchase Contract Settlement Date and (ii) if necessary, on the third Business Day preceding the Purchase Contract Settlement Date, and in connection therewith to determine the Reset Rate at an interest rate on the applicable Remarketing Price. It is understood Date, if any, sufficient to allow the Remarketing at a price equal to the Remarketing Value as set forth herein (each such subsequent Remarketing up to and agreed that including the ninth Business Day preceding the Purchase Contract Settlement Date being referred to as a “Subsequent Remarketing” and each such date to be referred to as a “Subsequent Remarketing Date”; and the Remarketing on any the third Business Day preceding the Purchase Contract Settlement Date being referred to as the “Final Remarketing” and such date to be referred to as the “Final Remarketing Date Date”) and, in each case, in accordance with the Remarketing Procedures; provided, however, that, the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, if at all, must occur no later than on the Remarketing Agent shall determine, in consultation with third Business Day immediately preceding the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable lawPurchase Contract Settlement Date.
(e) IfIf the Initial Remarketing, by 4:00 p.m.any Subsequent Remarketing or the Final Remarketing is successful (respectively, a “Successful Initial Remarketing,” a “Successful Subsequent Remarketing” or a “Successful Final Remarketing”; any of the foregoing, a “Successful Remarketing”; and the date of a Successful Remarketing, the “Remarketing Date”), then:
(i) By approximately 4:30 p.m. (New York City time, ) on the applicable such Remarketing Date, (iA) the Remarketing Agent is unable to Remarket all of the Remarketed Debentures, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone the Company, the Purchase Contract Agent, the Collateral Agent, the Securities Intermediary, the Depositary and the Trustee of the Reset Rate determined in the Remarketing, (and promptly deliver a notice in writing thereafter toB) the DepositoryRemarketing Agent shall advise each purchaser of Senior Notes sold in the Remarketing or such purchaser’s DTC participant (the “Depositary Participant”) of the Reset Rate and the number of Senior Notes such purchaser is to purchase, and (C) the Remarketing Agent shall request each purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day after the Remarketing Date (the “Remarketing Settlement Date”) in same day funds against delivery of the Remarketing Senior Notes purchased through the facilities of the Depositary. In accordance with the Depositary’s normal procedures, on the Remarketing Settlement Date or the Purchase Contract Settlement Date, as applicable, the transactions described above with respect to Senior Notes remarketed in the Remarketing shall be executed through the Depositary, and the accounts of the respective Depositary Participants shall be debited and credited, respectively, and such Remarketing Senior Notes delivered by book-entry, as necessary to effect purchases and sales of such Remarketing Senior Notes; provided, however, that, the settlement procedures set forth herein, including provisions for payment by purchasers of the Remarketing Senior Notes in the Remarketing, shall be subject to modification to the extent required by the Depositary or if the book-entry system is no longer available for the Remarketing Senior Notes at the time of the Remarketing, to facilitate the remarketing of the Remarketing Senior Notes in certificated form and the Remarketing Agent may modify such settlement procedures in order to facilitate the settlement process.
(ii) Upon receipt of the proceeds from a Successful Remarketing, the Remarketing Agent shall:
(A) deduct and retain for itself an amount equal to 0.25% of the Principal Amount of the Remarketing Senior Notes as a fee for the performance of its services as Remarketing Agent hereunder;
(B) (I) if the Successful Remarketing occurs prior to the third Business Day preceding the Purchase Contract Settlement Date, use, or deliver to the Collateral Agent for it to use, on the Remarketing Settlement Date, the remaining proceeds with respect to the Pledged Senior Notes from such Successful Remarketing to purchase the Treasury Portfolio, in open market transactions and/or at Treasury auctions, described in clauses (1)(i) and (2)(i) of the definition of Remarketing Value, which will be held by the Collateral Agent pursuant to the terms of the Pledge Agreement, or (II) if such Successful Remarketing occurs on the Final Remarketing Date, remit to the Collateral Agent on the Remarketing Settlement Date the portion of the remaining proceeds with respect to the Pledged Senior Notes from such Successful Remarketing in an amount equal to the aggregate principal amount of such Senior Notes;
(C) if any Separated Senior Notes were included in such Successful Remarketing, remit to the Collateral Agent for payment to the holders of such Separated Senior Notes the amounts specified in clauses 1(ii) and 2(ii) of the definition of Remarketing Value; and
(D) remit any remaining balance of such proceeds after the application of such proceeds as set forth in clauses (A) through (C) above, if any, to the Purchase Contract Agent for the benefit of the Holders of the remarketed Pledged Senior Notes and to the Collateral Agent for the holders of any remarketed Separated Senior Notes, on a pro rata basis; provided, however, that if such Successful Remarketing is consummated after 4:30 p.m. (New York City time) on such Remarketing Date and, despite using its commercially reasonable efforts, the Remarketing Agent cannot cause the applications of the proceeds specified above to occur on the Remarketing Settlement Date, then the Remarketing Agent may make such applications and remittances on the next succeeding Business Day. The Remarketing Agent may, in its discretion, communicate with holders of the Senior Notes, and prospective purchasers of Remarketing Senior Notes in connection with its remarketing efforts in order to facilitate the remarketing and the intent and purpose of this Agreement despite the fact that such communication may not be expressly required herein.
(f) If, by 4:00 p.m. (New York City time), on the ninth Business Day preceding the Purchase Contract Settlement Date, the Remarketing Agent, despite using its commercially reasonable efforts, has been and is unable to remarket all of the Remarketing Senior Notes tendered for purchase at a price equal to at least the Remarketing Value, the Remarketing Agent shall transfer to the Collateral Agent, by the sixth Business Day preceding the Purchase Contract Settlement Date, the Pledged Senior Notes that that were to be remarketed in the Initial or Subsequent Remarketing, whereupon the Collateral Agent shall, for the benefit of the Company, hold such Pledged Senior Notes, to secure the obligation of the related Holders of Corporate Units to purchase Common Stock under the related Purchase Contracts.
(g) If, (1) by 4:00 p.m. (New York City time), on the Final Remarketing Date, the Remarketing Agent, despite using its commercially reasonable efforts, has been and is unable to remarket all of the Remarketing Senior Notes tendered for purchase at a price equal to at least the Remarketing Value, or (2) the Remarketing Agent has determined that the Remarketing may not be commenced or consummated as contemplated herein and by the Remarketing Procedures under applicable law, a failed Remarketing (a “Failed Remarketing”) shall be deemed to have occurred. If a Failed Remarketing occurs, the Remarketing Agent and the Company, as applicable, shall take the following actions:
(i) The Remarketing Agent shall notify by telephone the Company, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been Trustee that a Failed Remarketing has occurred, whereupon the Company shall notify the Depositary, by telephone, that a Failed Remarketing has occurred.
(ii) The Company shall cause a notice of the Failed Remarketing to be sent to the holders of all Senior Notes and to be published in an Authorized Newspaper in New York City, in each case, no later than the Business Day preceding Purchase Contract Settlement Date.
(iii) The Remarketing Agent shall determine the Reset Rate that will be determined equal to the Two- Year Benchmark Rate plus the Applicable Spread in the sole reasonable discretion accordance with Section 106 of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(fiv) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the The Remarketing Agent shall adviseremit the Pledged Senior Notes and the Separated Senior Notes that were to be remarketed, if then held by telephonethe Remarketing Agent, to the Collateral Agent.
(h) If there are no Pledged Senior Notes and no holders of Separated Senior Notes elect to participate in the Remarketing and deliver their Separated Senior Notes and a notice of such election to the Collateral Agent by the Election Date in accordance with the Supplemental Indenture, then:
(i) the DepositoryRemarketing Agent shall, in its sole discretion, determine the Purchase Contract Agentrate that, in its judgment, would have been established had a Remarketing been held on the TrusteeFinal Remarketing Date, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of rate shall be the Reset Rate with respect to the Debentures and the aggregate principal amount of Remarketed Debentures sold in such RemarketingRate;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures of Remarketing Agent shall advise by telephone the Reset Rate Company and the aggregate principal amount Trustee of Remarketed Debentures such purchaser is to purchase;Reset Rate, whereupon the Company shall notify the Depositary in writing of such Reset Rate; and
(iii) each the Company shall cause a notice of such purchaser (if other than a Depository Participant) Reset Rate to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior sent to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have holders of all Senior Notes and to specify be published in an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, Authorized Newspaper in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate DebenturesNew York City, in each case, shall be applied in accordance with Section 5.02 of no later than the Business Day preceding the Purchase Contract and Pledge AgreementSettlement Date.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Remarketing Agreement (Dominion Resources Inc /Va/)
Appointment and Obligations of the Remarketing Agent. (a) The Company Issuers hereby appoints [ • appoint [·] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • [·] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional a Remarketing during the Optional a Three-Business Day Remarketing Period during the Period for Early Remarketing selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. If the Remarketing Agent is unsuccessful on the first Remarketing Date during such Three-Business Day Remarketing Period, a subsequent Remarketing shall be attempted (unless impracticable) by the Remarketing Agent on each of the two succeeding Remarketing Dates in that Three-Business Day Remarketing Period until a Successful Early Remarketing occurs. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional a Remarketing during a Three-Business Day Remarketing Period during the Period for Early Remarketing, as and the Company may commence or postpone or cancel an Optional a Remarketing during a Three-Business Day Remarketing Period during the Period for Early Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Early Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if anyfor Early Remarketing, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Three-Business Day Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Contract Settlement Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Three-Business Day Remarketing Period will be considered successful and no further attempts will be made if the resulting proceeds are at least equal to the applicable Remarketing Minimum Price. The Company has the right to may not postpone the Final a Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of during the Final Remarketing Period.
(d) In connection with a each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the terms of the Remarketed Notes, including those which may be modified in connection with the Remarketing pursuant to the Indenture, including the Company’s election whether to modify the maturity date, optional redemption provisions, interest payment dates and/or the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price Minimum Price, and that in the sole reasonable discretion of the Remarketing Agent will enable it them to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Minimum Price in such Remarketing; provided that such Reset Rate rate shall not exceed the maximum interest rate permitted by applicable lawlaw and shall not be a contingent or floating rate.
(e) If, by 4:00 p.m., New York City time, on the applicable If a Failed Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed Debentures, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfiedshall have occurred, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the CompanyCompany of any such Failed Remarketing. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset reset, and will continue to be the Coupon Rate interest rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to Rate, interest payment dates and related record dates, maturity date and optional redemption terms, if any, determined by the Debentures Remarketing Agent in such Remarketing and the aggregate principal amount of Remarketed Debentures Notes sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures Notes of the Reset Rate Rate, interest payment dates and related record dates and maturity date and the aggregate principal amount of Remarketed Debentures Notes such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Reset Effective Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Reset Effective Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Reset Effective Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units Units, shall be paid to the Collateral Agent in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement and (ii) with respect to the Separate Debentures, in each caseNotes, shall be applied paid to the Custodial Agent for payment to the holders of such Separate Notes in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender tender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Assured Guaranty LTD)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Xxxxxx Xxxxxxx & Co. LLC as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] Xxxxxx Xxxxxxx & Co. LLC hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesSenior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event or Special Event Redemption has occurred prior to such date, if the Company elects to conduct an Optional Early Remarketing during the Optional an Early Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Senior Notes at the applicable Remarketing Price. If the Remarketing Agent is unsuccessful on the first Early Remarketing Date during such Early Remarketing Period, a subsequent Remarketing shall be attempted (unless impracticable) by the Remarketing Agent on each of the two following Early Remarketing Dates in that Early Remarketing Period until a Successful Early Remarketing occurs. Upon the occurrence of any Failed Early Remarketing, unless a Termination Event or Special Event Redemption has occurred, the Company may elect to conduct additional Early Remarketings during the Early Remarketing Period. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Early Remarketing, as the Company may commence or postpone or cancel an Optional Early Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If In the case there is no Successful Optional Early Remarketing during the Optional any Early Remarketing Period or no Optional Early Remarketing occurs on any Optional Early Remarketing Date, if any, and unless a Termination Event or a Special Event Redemption has occurred prior to such date, on each the Final Remarketing Date or Dates in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Senior Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Final Remarketing Date in the Final Remarketing Period will be considered successful and no further attempts will be made if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to may not postpone the Final a Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of during the Final Remarketing Period.
(d) In connection with a each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the terms of the Senior Notes, including those which may be modified in connection with the Remarketing pursuant to the Indenture, including the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent (0.00001) per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Senior Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Senior Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the sole reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Senior Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i1) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesSenior Notes, other than to the Company, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii2) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDepositary, the Purchase Contract Agent, the Collateral Agent and the CompanyCompany of any such Failed Remarketing. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Senior Notes will not be reset reset, and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the DepositoryDepositary, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined by the Debentures Remarketing Agent in such Remarketing and the aggregate principal amount number of Remarketed Debentures Senior Notes sold in such Remarketing;
(ii2) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures Senior Notes of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Senior Notes such purchaser is to purchase;
(iii3) each such purchaser (if other than a Depository Depositary Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Senior Notes purchased through the facilities of the DepositoryDepositary; and
(iv4) each such purchaser (or Depository Depositary Participant thereof) that the Remarketed Debentures Senior Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Senior Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Senior Notes underlying the Applicable Ownership Interests in Debentures Senior Notes that are components of the Corporate Units Units, shall be paid to the Collateral Agent in accordance with Section 5.02 or 5.03, as applicable, of the Purchase Contract and Pledge Agreement and (ii) with respect to the Separate Debentures, in each caseSenior Notes, shall be applied paid to the Custodial Agent for payment to the holders of such Separate Senior Notes in accordance with Section 5.02 or 5.03, as applicable, of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesSenior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender tender of Remarketed Debentures Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures Senior Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Remarketing Agreement (Autoliv Inc)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Xxxxxx Xxxxxxx & Co. Incorporated as the exclusive Remarketing Agentremarketing agent, and, subject to the terms and conditions set forth herein, [ • ] Xxxxxx Xxxxxxx & Co. Incorporated hereby accepts appointment as Remarketing Agent, for the purpose of (i1) remarketing the Remarketing Remarketed Debentures Preferred Shares on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, thereof and (iii2) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior to such date, if On the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to third Business Day immediately preceding the Purchase Contract and Pledge AgreementSettlement Date (the "Remarketing Date"), the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Preferred Shares tendered or deemed tendered for purchase at a price per Preferred Share (the applicable "Remarketing Price. For ") equal to 100.25% of the avoidance stated liquidation preference per Preferred Share, plus any accrued and unpaid dividends thereron.
(c) If, as a result of doubtthe efforts described in Section 2(b), the Company shall determine in its sole discretion if and when Remarketing Agent has determined that it will be able to attempt an Optional Remarketing, as remarket all of the Company may commence Preferred Shares tendered or postpone or cancel an Optional deemed tendered for purchase at a price equal to the Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing DatePrice, the Remarketing Agent shall notify determine the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury PortfolioReset Rate, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if ) sufficient to cause the Company elects to remarket the Debentures as floatingthen-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate current market value per share of the Preferred Shares to be equal to at least the applicable Remarketing Price and Price, which rate shall be the lowest rate per annum that in the sole reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Preferred Shares tendered or deemed tendered for Remarketing at no less than a price equal to the applicable Remarketing Price Price.
(d) If none of the Holders of the Preferred Shares or the holders of the PEPS Units elect to have Preferred Shares remarketed in such the Remarketing; provided that such , the Reset Rate shall not exceed be the maximum interest rate permitted determined by applicable lawthe Remarketing Agent, in its sole reasonable discretion, as the rate that would have been established had a Remarketing been held on the Remarketing Date.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket remarket all of the Remarketed Debentures, Preferred Shares tendered or deemed tendered for purchase at a price not less than per share equal to the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the hereof, a Failed Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfiedshall be deemed to have occurred, and the Remarketing Agent shall so advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDepositary, the Purchase Contract Agent, the Collateral Agent and the Company. In the event of a Failed Remarketing, the Reset Rate shall equal the Six-Month Benchmark Treasury Rate plus the Applicable Spread. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by By approximately 4:30 p.m., New York City time, on the applicable Remarketing DateDate (provided that there has not been a Failed Remarketing), the Remarketing Agent shall advise, by telephone:
(i1) the DepositoryDepositary, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined in the Debentures Remarketing and the aggregate principal amount number of Remarketed Debentures Preferred Shares sold in such the Remarketing;
(ii2) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures Preferred Shares of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Preferred Shares such purchaser is to purchase;; and
(iii3) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Purchase Contract Settlement Date in same day funds against delivery of the Remarketed Debentures Preferred Shares purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlementDepositary. The Remarketing Agent shall also, if required by the Securities ActAct or the rules and regulations promulgated thereunder, deliver, in conformity with the requirements of the Securities Act, deliver to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesPreferred Shares, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender tender of Remarketed Debentures Preferred Shares for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Preferred Shares. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures Preferred Shares for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Xxxxxx Xxxxxxx & Co. Incorporated as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] Xxxxxx Xxxxxxx & Co. Incorporated hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Special Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence Redemption or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each the fifth Business Day immediately preceding the Purchase Contract Settlement Date (the “Initial Remarketing Date in the Final Remarketing PeriodDate”), the Remarketing Agent shall use its commercially reasonable efforts to remarket (“Initial Remarketing”) the Remarketed Debentures Notes, at the applicable Remarketing Price.
(c) In the case of a Failed Remarketing on the Initial Remarketing Date and unless a Special Event Redemption or a Termination Event has occurred prior to such date, on the fourth Business Day immediately preceding the Purchase Contract Settlement Date (the “Second Remarketing Date”), the Remarketing Agent shall use its reasonable efforts to remarket (the “Second Remarketing”) the Remarketed Notes at the Remarketing Price. In the case of a Failed Remarketing on the Second Remarketing Date and unless a Special Event Redemption or a Termination Event has occurred prior to such date, on the third Business Day immediately preceding the Purchase Contract Settlement Date (the “Final Remarketing Date”), the Remarketing Agent shall use its reasonable efforts to remarket (the “Final Remarketing”) the Remarketed Notes at the Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful and no further attempts will be made if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the terms of the notes, including those which may be modified in connection with the remarketing pursuant to the Indenture, including the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the sole reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i1) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesNotes, other than to the Company, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii2) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDepositary, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the DepositoryDepositary, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined by the Debentures Remarketing Agent in such Remarketing and the aggregate principal amount number of Remarketed Debentures Notes sold in such Remarketing;
(ii2) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures Notes of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Notes such purchaser is to purchase;
(iii3) each such purchaser (if other than a Depository Depositary Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the DepositoryDepositary; and
(iv4) each such purchaser (or Depository Depositary Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date, and, in the case of the Initial Remarketing Date or the Second Remarketing, the Remarketing Settlement Date will be five Business Days or four Business Days, respectively, following the date of such Remarketing and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units Units, shall be paid to the Collateral Agent in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement and (ii) with respect to the Separate Debentures, in each caseNotes, shall be applied paid to the Custodial Agent for payment to the holders of such Separate Notes in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) The right of each holder of Remarketed Notes to have such Remarketed Notes remarketed and sold on any Remarketing Date shall be subject to the conditions that (i) the Remarketing Agent conducts (A) an Initial Remarketing, (B) a Second Remarketing in the event of a Failed Remarketing on the Initial Remarketing Date and (C) a Final Remarketing in the event of a Failed Remarketing on the Second Remarketing Date, each pursuant to the terms of this Agreement, (ii) neither a Special Event Redemption nor a Termination Event has occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Notes at the Remarketing Price based on the Reset Rate, and (iv) such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agent as and when required.
(i) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender tender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Purchase Contract Agreement (E Trade Financial Corp)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] as the exclusive Remarketing Agent[remarketing agent], and, subject to the terms and conditions set forth herein, [ • [remarketing agent] hereby accepts appointment appointment, as exclusive remarketing agent (the "Remarketing Agent, ") for the purpose of (i) remarketing Remarketing the Remarketed Debentures Preferred Stock on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the The Remarketing Agent shall agrees (i) to use its commercially reasonable efforts to remarket the Remarketed Debentures at Preferred Stock tendered or deemed tendered to the applicable Remarketing Price. For Agent in the avoidance Remarketing, (ii) to notify the Company promptly of doubtthe Reset Rate and (iii) to carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures.
(c) On the third Business Day immediately preceding the Purchase Contract Settlement Date (the "Remarketing Date"), the Company Remarketing Agent shall determine in its sole discretion if and when use commercially reasonable efforts to attempt an Optional Remarketingremarket, at a price equal to 100.50% of the aggregate liquidation preference thereof, the Remarketed Preferred Stock tendered or deemed tendered for purchase.
(d) If, as a result of the Company may commence efforts described in Section 1(b), the Remarketing Agent determines that it will be able to remarket all Remarketed Securities tendered or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In deemed tendered for purchase at a price of 100.50% of the case aggregate liquidation preference of an Optional Remarketingsuch Remarketed Preferred Stock prior to 4:00 p.m., New York City time, on any the Remarketing Date, the Remarketing Agent shall notify determine the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury PortfolioReset Rate, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread ) that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent determines, in its sole judgment, to be the lowest rate per annum that will enable it to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Preferred Stock tendered or deemed tendered for Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If none of the holders of Remarketed Preferred Stock elects to have Remarketed Preferred Stock Remarketed in the Remarketing, the Remarketing Agent shall, in its sole discretion, determine the rate that would have been established had a Remarketing of all the Preferred Stock been held on the Remarketing Date, and such rate shall be the Reset Rate.
(f) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket remarket all of Remarketed Preferred Stock tendered or deemed tendered for purchase, a failed Remarketing (the Remarketed Debentures"Failed Remarketing") shall be deemed to have occurred, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall so advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent Depositary and the Company. Whether or not there has been If a Failed Remarketing occurs, the Reset Rate will be determined in equal to (i) the sole reasonable discretion of "AA" Composite Commercial Paper Rate on the Remarketing Agent. In the event of Date, plus (ii) a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate spread as set forth in the Supplemental IndentureCertificate of Designations.
(fg) In the event of a Successful Remarketing, by By approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, provided that there has not been a Failed Remarketing, the Remarketing Agent shall advise, by telephone:
telephone (i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent Depositary and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined in the Debentures Remarketing and the aggregate principal amount number of shares of Remarketed Debentures Preferred Stock sold in such the Remarketing;
, (ii) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount number of shares of Remarketed Debentures Preferred Stock such purchaser is to purchase;
purchase and (iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Purchase Contract Settlement Date in same day funds against delivery of the shares of Remarketed Debentures Preferred Stock purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge AgreementDepositary.
(h) It is understood and agreed that the The Remarketing Agent shall not have any obligation whatsoever remit (i) to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Collateral Agent shall be obligated in any case to provide funds to make payment upon surrender proceeds of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything Preferred Stock subject to the contrary herein, it is understood and agreed that Pledge Agreement in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be an amount equal to 100% of the aggregate liquidation preference of such Remarketed Preferred Stock and (ii) to the Depositary Participant of the seller of Remarketed Preferred Stock not subject to the Pledge Agreement proceeds of such Remarketed Preferred Stock in an index selected by amount equal to 100% of the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis aggregate liquidation preference of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate)Remarketed Preferred Stock.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • [—] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • [—] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Fifth Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two three Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed DebenturesNotes, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset and will continue to be the Coupon Rate set forth in the Fifth Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures Notes and the aggregate principal amount of Remarketed Debentures Notes sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures Notes of the Reset Rate and the aggregate principal amount of Remarketed Debentures Notes such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units and (ii) with respect to the Separate DebenturesNotes, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Dominion Resources Inc /Va/)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Xxxxxx Brothers Inc. as exclusive remarketing agent (in such capacity, the exclusive "Remarketing Agent"), and, subject to the terms and conditions set forth herein, [ • ] Xxxxxx Brothers Inc. hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketing Remarketed Debentures Perpetual Preference Shares on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior The Remarketing Agent agrees to: (i) use commercially reasonable efforts to such date, if remarket the Remarketed Perpetual Preference Shares tendered to the Remarketing Agent in the Remarketing; (ii) notify the Company elects to conduct an Optional Remarketing during promptly of the Optional Remarketing Period selected by the Company pursuant Reset Rate as set forth in this Agreement; and (iii) carry out such other duties as are assigned to the Purchase Contract and Pledge AgreementRemarketing Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures.
(c) On the sixth Settlement Period Trading Day after the last day of the Remarketing Election Period (which we refer to as the "Initial Remarketing Date"), the Remarketing Agent shall use its commercially reasonable efforts to remarket at the lowest fixed rate per annum (unless the Company has determined, as provided in Section 1(f), to remarket at a floating rate based on 3-Month LIBOR) that will enable it to remarket the Remarketed Debentures Perpetual Preference Shares at a price, per Remarketed Perpetual Preference Share, equal to $50.50 plus an amount equal to any declared and unpaid dividends thereon. If the applicable Remarketing Price. For Agent cannot remarket the avoidance of doubt, Remarketed Perpetual Preference Shares on the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Initial Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Perpetual Preference Shares at the applicable Remarketing Price. It is understood and agreed that same price on the eleventh Settlement Period Trading Day after the last day of the Remarketing Election Period (which we refer to as the "Second Remarketing Date"). If the Remarketing Agent cannot remarket the Remarketed Perpetual Preference Shares on any the Second Remarketing Date, the Remarketing Agent will use its commercially reasonable efforts to remarket the Remarketed Perpetual Preference Shares at the same price on the sixteenth Settlement Period Trading Day after the last day of the Remarketing Election Period (which we refer to as the "Third Remarketing Date"). If the Remarketing Agent cannot remarket the Remarketed Perpetual Preference Shares on the Third Remarketing Date, the Remarketing Agent will use its commercially reasonable efforts to remarket the Remarketed Perpetual Preference Shares at the same price on the twenty-first Settlement Period Trading Day after the last day of the Remarketing Election Period (which we refer to as the "Final Remarketing Date"). The Initial Remarketing Date, the Second Remarketing Date, the Third Remarketing Date in and the Final Remarketing Period will be considered successful if Date are each referred to herein as a "Remarketing Date". In no event shall the resulting proceeds are Remarketing Agent remarket the Remarketed Perpetual Preference Shares at least equal to a fixed rate per annum that is lower than 5.625% or exceeds the maximum rate permitted by applicable Remarketing Pricelaw. The Remarketing Agent shall provide the Company has the right to postpone the Final Remarketing with information in the Company’s sole and absolute discretion on any day prior to the last two Business Days respect of the Final Remarketing, as appropriate, during the Remarketing PeriodDate.
(d) The Remarketing Agent shall not commence any Remarketing if the Company has provided the Remarketing Agent with written notice, no later than 5:00 p.m. (New York City time) on the second Settlement Period Trading Day after the last day of the Remarketing Election Period, indicating that it has exercised its option to redeem in whole the Perpetual Preference Shares in accordance with the Certificate of Designation of Perpetual Preference Shares. In connection with a Remarketingaddition, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, terminate a Remarketing if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (terminate such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of by providing the Remarketing Agent will enable it with such notice no later than 5:00 p.m. (New York City time) on the day prior to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable lawDate.
(e) No Remarketing shall occur unless all Remarketed Perpetual Preference Shares are held in book-entry form through The Depository Trust Company ("DTC").
(f) If the Company determines in connection with the Remarketing to set optional redemption provisions that will apply to the Remarketed Perpetual Preference Shares under the Certificate of Designation of Perpetual Preference Shares, or to remarket the Remarketed Perpetual Preference Shares at a floating rate based on 3-Month LIBOR, the Remarketing Agent must determine whether, in its reasonable judgment, such proposed redemption provisions or decision to remarket at a floating rate would adversely affect the Remarketing. Additionally, the Company shall determine the method of payment that will apply to the Remarketed Perpetual Preference Shares; provided, however, that such determination may not, in the reasonable judgment of the Remarketing Agent, adversely affect the Remarketing.
(g) If, by on or prior to 4:00 p.m., p.m. (New York City time, ) on the applicable a Remarketing Date, as a result of the efforts described in Section 1(c), the Remarketing Agent determines that it is able to remarket all Remarketed Perpetual Preference Shares, a successful Remarketing (a "Successful Remarketing") shall have occurred.
(h) If, as of 4:00 p.m. (New York City time) on the Initial Remarketing Date, Second Remarketing Date or Third Remarketing Date, the Remarketing Agent determines that it is unable to remarket all Remarketed Perpetual Preference Shares, a failed Remarketing shall be deemed to have occurred on such date and the Remarketing Agent shall so advise by telephone DTC and the Company.
(i) If, as of 4:00 p.m. (New York City time) on the Final Remarketing Date, the Remarketing Agent is unable to Remarket remarket all of Remarketed Perpetual Preference Shares, (i) a final failed Remarketing (the Remarketed Debentures"Final Failed Remarketing") shall be deemed to have occurred, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of Agent shall determine the conditions set forth in Section 6 hereof was not satisfiedReset Rate, which shall equal 3-Month LIBOR plus 454 basis points; and (iii) the Remarketing Agent shall so advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent DTC and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(fj) In the event of a Successful Remarketing, by By approximately 4:30 p.m., p.m. (New York City time, ) on the applicable a Remarketing Date, the Remarketing Agent shall advise, by telephone:
: (i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent DTC participant and the Company (whether a Successful Remarketing has occurred and promptly deliver a notice in writing to such Persons thereafter) of if so, the Reset Rate with respect to determined in the Debentures Remarketing and the aggregate principal amount number of Remarketed Debentures sold in such Remarketing;
Perpetual Preference Shares sold; (ii) each purchaser (or the Depository Participant DTC participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Perpetual Preference Shares such purchaser is to purchase;
; and (iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant DTC participant to pay the purchase price on the third Business Day immediately following such Remarketing Date (the "Settlement Date Date") in same day immediately available funds against delivery of the Remarketed Debentures Perpetual Preference Shares purchased through the facilities of the Depository; andDTC participant.
(ivk) each such purchaser (or Depository Participant thereof) that If a Successful Remarketing occurs, on the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time purchasers shall pay the purchase price in immediately available funds against delivery of any such trade to prevent failed settlementthe Remarketed Perpetual Preference Shares purchased through the facilities of the DTC participant. The Remarketing Agent shall also, if required deduct a remarketing fee equal to $0.50 per Remarketed Perpetual Preference Share multiplied by the Securities Act, deliver, in conformity with number of Remarketed Perpetual Preference Shares from the requirements aggregate proceeds from the Remarketing and remit the remaining portion to the Company for the benefit of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
holders by 5:00 p.m. (gNew York City time) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by third Business Day immediately following the Company plus a spread determined by the related Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate)Date.
Appears in 1 contract
Samples: Remarketing Agreement (Aspen Insurance Holdings LTD)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • [—] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • [—] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. p.m., New York City time time, on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two three Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures Notes as floating-rate Debentures Notes as described in Section 2(i)(32(i)(2), the interest rate index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed DebenturesNotes, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures Notes and the aggregate principal amount of Remarketed Debentures Notes sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures Notes of the Reset Rate and the aggregate principal amount of Remarketed Debentures Notes such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units and (ii) with respect to the Separate DebenturesNotes, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things: (1) move up the stated maturity of the Notes to a date earlier than October 1, 2024 but not earlier than October 1, 2021 and (2) remarket the Debentures Notes as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures Notes shall be equal to an interest rate index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures Notes may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rateinterest rate index).
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Dte Energy Co)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Bear, Xxxxxxx & Co. Inc., and Bear, Xxxxxxx & Co. Inc. hereby accepts appointment, as exclusive remarketing agent (the exclusive "Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] hereby accepts appointment as Remarketing Agent, ") for the purpose of (i) remarketing Remarketing the Remarketed Debentures Convertible Preferred Shares on behalf of the holders thereof, thereof and
(ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the The Remarketing Agent shall agrees (i) to use its commercially reasonable efforts to remarket the Remarketed Debentures at Convertible Preferred Shares included in the applicable Remarketing, (ii) to notify the Company promptly of the Reset Rate and (iii) to carry out such other duties as are assigned to the Remarketing Price. For Agent in the avoidance Remarketing Procedures, all in accordance with the provisions of doubtthe Remarketing Procedures.
(c) On the fourth Trading Day immediately preceding the Purchase Contract Settlement Date (the "Remarketing Date"), the Company Remarketing Agent shall determine use commercially reasonable efforts to remarket, at a minimum price of 100.25% of the aggregate liquidation preference thereof the Remarketed Convertible Preferred Shares included in its sole discretion if and when to attempt an Optional the Remarketing.
(d) If, as a result of the Company may commence or postpone or cancel an Optional efforts described in Section 1(b), the Remarketing Agent determines that it will be able to remarket all Remarketed Convertible Preferred Shares included in its absolute and sole discretion. In the case Remarketing for purchase at a minimum price of an Optional Remarketing100.25% of the aggregate liquidation preference of such Remarketed Convertible Preferred Shares prior to 4:00 p.m., New York City time, on any the Remarketing Date, the Remarketing Agent shall notify determine the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury PortfolioReset Rate, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent percent) that the Remarketing Agent determines, in its sole judgment, to be the lowest rate per annum, orbut not less than the original Dividend Rate on the Convertible Preferred Shares, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket remarket, at such price, all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Convertible Preferred Shares tendered or deemed tendered for Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If none of the holders of Remarketed Convertible Preferred Shares or the holders of Hybrid Capital Units elects to have Remarketed Convertible Preferred Shares remarketed in the Remarketing, the Remarketing Agent shall, in its sole discretion, determine the rate that would have been established had a Remarketing of all the Convertible Preferred Shares been held on the Remarketing Date, and such rate shall be the Reset Rate.
(f) If, by 4:00 4:30 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket remarket all of Remarketed Convertible Preferred Shares included in the Remarketed DebenturesRemarketing, at a price not less than failed Remarketing (the applicable Remarketing Price pursuant "Failed Remarketing") shall be deemed to the terms have occurred, and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall so advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent Depositary and the Company. Whether or not there has been If a Failed Remarketing occurs, the Reset Rate will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of equal to (i) 3-month LIBOR, plus (ii) a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate spread as set forth in the Supplemental IndentureCertificate of Designations.
(fg) In the event of a Successful Remarketing, by By approximately 4:30 p.m., New York City time, on the applicable Trading Day following the Remarketing Date, provided that there has not been a Failed Remarketing, the Remarketing Agent shall advise, by telephone:
, (i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent Depositary and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined in the Debentures Remarketing and the aggregate principal amount number of Remarketed Debentures Convertible Preferred Shares sold in such the Remarketing;
, (ii) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Convertible Preferred Shares such purchaser is to purchase;
purchase and (iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Purchase Contract Settlement Date in same day funds against delivery of the Remarketed Debentures Convertible Preferred Shares purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date Depositary. The purchase price shall include any accrued and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding unpaid dividends as of the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the The Remarketing Agent shall not have any obligation whatsoever remit (i) to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures collateral agent for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither Hybrid Capital Units (the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender "Collateral Agent") proceeds of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything Convertible Preferred Shares subject to the contrary hereinPledge Agreement, it is understood and agreed that dated as of December 17, 2003, made by JPMorgan Chase Bank, on behalf of the holders of Hybrid Capital Units, in connection with any Remarketing, favor of the Company may elect(the "Pledge Agreement"), in consultation with an amount equal to the proceeds from the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case (net of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with Fee) of such Remarketed Convertible Preferred Shares and (ii) to the Company, in which case interest on Custodial Agent proceeds from the Debentures may be calculated on Remarketing (net of the basis Remarketing Fee) of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate)Remarketed Convertible Preferred Shares.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] BAS as the exclusive initial Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] BAS hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Securities on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, establishing the Reset Rate (as defined below) for the DebenturesSecurities in connection with the Remarketing, and (iii) performing such other duties as are assigned to the Remarketing Agent Agents in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior The Remarketing Agents agree (i) to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at Securities tendered or deemed tendered to the applicable Remarketing Price. For Agents in the avoidance of doubtRemarketing, (ii) to establish the Reset Rate in accordance with the Remarketing Procedures and to notify the Company, the Company shall determine Depositary and the Trustee promptly of the Reset Rate, and (ii) to carry out such other duties as are assigned to the Remarketing Agents in its sole discretion if and when to attempt an Optional Remarketingthe Remarketing Procedures, as all in accordance with the Company may commence or postpone or cancel an Optional provisions of the Remarketing in its absolute and sole discretion. In Procedures.
(c) On the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent Agents shall notify the Companyuse their commercially reasonable efforts to remarket, the Collateral Agent and the Quotation Agent at a price which results in proceeds, net of the amount and issue fee described in Section 1(j), equal to at least 100% of the U.S. Treasury securities (or aggregate principal or interest strips thereof) that will constitute the Treasury Portfolioamount, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract plus accrued and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Dateunpaid interest, if any, and unless a Termination Event has occurred prior to such date, on each the Remarketing Settlement Date in (the Final “Remarketing PeriodPrice”), the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing PeriodSecurities tendered or deemed tendered for purchase.
(d) In connection with If, as a Remarketingresult of the efforts described in Section l(b), the Remarketing Agent Agents determine that they will be able to remarket all Remarketed Securities tendered or deemed tendered for purchase at the Remarketing Price by 4:00 P.M., New York City time, on the Remarketing Date (a “Successful Remarketing”), the Remarketing Agents shall determine, in consultation with the Company, determine the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annumpercent, or, if which will apply to all Securities (whether or not the Company elects to remarket holders thereof participate in the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear Remarketing) (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Securities tendered or deemed tendered for Remarketing; provided provided, however, that such the Reset Rate shall may not exceed the maximum interest rate permitted prevailing market yield, as determined by applicable lawthe Remarketing Agents, of the benchmark U.S. treasury security having a remaining maturity that most closely corresponds to the period from the Remarketing Settlement Date until the Stated Maturity of the Securities (after giving effect to the change in the Stated Maturity of the Securities on the Remarketing Settlement Date pursuant to the Notice), plus 350 basis points per annum; provided, further, that the Reset Rate may not be less than 0% per annum.
(e) If, by 4:00 p.m.P.M., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is Agents are unable to Remarket remarket all of the Remarketed DebenturesSecurities tendered or deemed tendered for purchase, at a price not less than the applicable Failed Remarketing Price pursuant shall be deemed to the terms have occurred, and conditions hereof or (ii) the Remarketing did not occur Agents shall, on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfieddate, the Remarketing Agent shall so advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent Trustee, the Company and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Collateral Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Failed Remarketing, by the Remarketing Agents shall promptly remit (i) to the Custodial Agent the Remarketed Securities, if any, that are no longer a component of the Units (“Separate Securities”), and (ii) to the Collateral Agent the balance of the Remarketed Securities.
(g) By approximately 4:30 p.m.P.M., New York City time, on the applicable Remarketing Date, provided that there has not been a Failed Remarketing, the Remarketing Agent Agents shall advise, by telephone:
(i) , the DepositoryCompany, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent Depositary and the Company (Trustee that the Remarketing was successful and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined in the Debentures Remarketing and the aggregate principal amount of Remarketed Debentures Securities sold in such the Remarketing;.
(iih) In accordance with the Depositary’s normal procedures, on the Remarketing Settlement Date, the transactions described above with respect to each purchaser (or Security tendered for purchase and sold in the Depository Participant thereof) of Remarketed Debentures Remarketing shall be executed through the Depositary, and the accounts of the Reset Rate respective Depositary participants shall be debited and credited and such Securities delivered by book-entry as necessary to effect purchases and sales of such Securities.
(i) On the Remarketing Settlement Date, the tender and settlement procedures set forth in this Section 1, including provisions for payment by purchasers of the Remarketed Securities in the Remarketing, shall be subject to modification to the extent required by the Depositary or, if the book-entry system is no longer available for the Remarketed Securities at the time of the Remarketing, to facilitate the tendering and remarketing of the Remarketed Securities in certificated form. In addition, the Remarketing Agents may modify the settlement procedures set forth herein in order to facilitate the settlement process.
(j) On the Remarketing Settlement Date, the Remarketing Agents shall retain as a remarketing fee an amount to be specified in the Pricing Agreement (as defined below) and shall remit (i) to the extent such proceeds relate to Remarketed Securities that are components of the Units, to the Purchase Contract Agent up to the aggregate principal amount of such Remarketed Debentures such purchaser is Securities, (ii) the portion of the balance attributable to purchase;
the Separate Securities to the holders of the Separate Securities that were remarketed and (iii) each such purchaser (if other than a Depository Participant) the remaining portion of the balance to give instructions the Purchase Contract Agent for distribution to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery holders of the Remarketed Debentures purchased through Securities in accordance with the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures Purchase Contract Agreement. Holders whose Securities are remarketed pursuant to this Remarketing Agreement will not otherwise be delivered until responsible for the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time payment of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus remarketing fee in connection with the Remarketingtherewith.
(gk) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components If fewer than all of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied Remarketed Securities are remarketed in accordance with Section 5.02 the terms hereof, the Remarketing shall be deemed to have failed as to all Remarketed Securities.
(l) If at any time during the term of this Remarketing Agreement, any Event of Default (as defined in the Indenture) or event that with the passage of time or the giving of notice or both would become such an Event of Default has occurred and is continuing under the Indenture, then the obligations and duties of the Remarketing Agents under this Remarketing Agreement shall be suspended until such default or event has been cured. The Company will promptly cause the Trustee, the Purchase Contract Agent and Pledge Agreement.
(h) It is understood and agreed that the Collateral Agent to give the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing Agents notice of all such defaults and events of which such trustee or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketingagent is aware.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Remarketing Agreement (Metlife Inc)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • [—] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • [—] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. p.m., New York City time time, on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two three Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed DebenturesNotes, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures Notes and the aggregate principal amount of Remarketed Debentures Notes sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures Notes of the Reset Rate and the aggregate principal amount of Remarketed Debentures Notes such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units and (ii) with respect to the Separate DebenturesNotes, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Anthem, Inc.)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Lehman Brothers Inc., and Lehman Brothers Inc. hereby accepts xxxxxxtment, as exclusive xxxxxxeting agent (the exclusive "Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] hereby accepts appointment as Remarketing Agent, ") for the purpose of (i) remarketing Remarketing the Remarketed Debentures Preferred Stock on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the The Remarketing Agent shall agrees (i) to use its commercially reasonable efforts to remarket the Remarketed Debentures at Preferred Stock tendered or deemed tendered to the applicable Remarketing Price. For Agent in the avoidance Remarketing, (ii) to notify the Company promptly of doubtthe Reset Rate and (iii) to carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures.
(c) On the third Business Day immediately preceding the Purchase Contract Settlement Date (the "Remarketing Date"), the Company Remarketing Agent shall determine in its sole discretion if and when use commercially reasonable efforts to attempt an Optional Remarketingremarket, at a price equal to 100.50% of the aggregate liquidation preference thereof, the Remarketed Preferred Stock tendered or deemed tendered for purchase.
(d) If, as a result of the Company may commence efforts described in Section 1(b), the Remarketing Agent determines that it will be able to remarket all Remarketed Securities tendered or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In deemed tendered for purchase at a price of 100.50% of the case aggregate liquidation preference of an Optional Remarketingsuch Remarketed Preferred Stock prior to 4:00 p.m., New York City time, on any the Remarketing Date, the Remarketing Agent shall notify determine the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury PortfolioReset Rate, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread ) that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent determines, in its sole judgment, to be the lowest rate per annum that will enable it to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Preferred Stock tendered or deemed tendered for Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If none of the holders of Remarketed Preferred Stock elects to have Remarketed Preferred Stock Remarketed in the Remarketing, the Remarketing Agent shall, in its sole discretion, determine the rate that would have been established had a Remarketing of all the Preferred Stock been held on the Remarketing Date, and such rate shall be the Reset Rate.
(f) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket remarket all of Remarketed Preferred Stock tendered or deemed tendered for purchase, a failed Remarketing (the Remarketed Debentures"Failed Remarketing") shall be deemed to have occurred, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall so advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent Depositary and the Company. Whether or not there has been If a Failed Remarketing occurs, the Reset Rate will be determined in equal to (i) the sole reasonable discretion of "AA" Composite Commercial Paper Rate on the Remarketing Agent. In the event of Date, plus (ii) a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate spread as set forth in the Supplemental IndentureCertificate of Designations.
(fg) In the event of a Successful Remarketing, by By approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, provided that there has not been a Failed Remarketing, the Remarketing Agent shall advise, by telephone:
telephone (i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent Depositary and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined in the Debentures Remarketing and the aggregate principal amount number of shares of Remarketed Debentures Preferred Stock sold in such the Remarketing;
, (ii) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount number of shares of Remarketed Debentures Preferred Stock such purchaser is to purchase;
purchase and (iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Purchase Contract Settlement Date in same day funds against delivery of the shares of Remarketed Debentures Preferred Stock purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge AgreementDepositary.
(h) It is understood and agreed that the The Remarketing Agent shall not have any obligation whatsoever remit (i) to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Collateral Agent shall be obligated in any case to provide funds to make payment upon surrender proceeds of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything Preferred Stock subject to the contrary herein, it is understood and agreed that Pledge Agreement in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be an amount equal to 100% of the aggregate liquidation preference of such Remarketed Preferred Stock and (ii) to the Depositary Participant of the seller of Remarketed Preferred Stock not subject to the Pledge Agreement proceeds of such Remarketed Preferred Stock in an index selected by amount equal to 100% of the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis aggregate liquidation preference of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate)Remarketed Preferred Stock.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company and [Capital Funding] [the Trust] hereby appoints [ • ] appoint ______________ as exclusive remarketing agent (the exclusive "Remarketing Agent"), and, subject to the terms and conditions set forth herein, [ • ] ______________ hereby (1) accepts appointment as Remarketing Agent, for the purpose of (iA) remarketing the Remarketing Remarketed Debentures Securities on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, thereof and (iiiB) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures, and (2) accepts and will perform all obligations of the Remarketing Agreement set forth in the [Trust Agreement,] [Officers' Certificate,] the Pledge Agreement and the Purchase Contract Agreement.
(b) Unless a Termination Event has occurred prior The Remarketing Agent agrees to such date(1) use reasonable efforts to remarket the Remarketed Securities tendered or deemed tendered to the Remarketing Agent in the Remarketing, if (2) notify the Company elects promptly of the Reset Rate and (3) carry out such other duties as are assigned to conduct an Optional the Remarketing during Agent in the Optional Remarketing Period selected by Procedures, all in accordance with the Company pursuant to provisions of the Remarketing Procedures.
(c) On the third Business Day immediately preceding the Purchase Contract and Pledge AgreementSettlement Date (the "Remarketing Date"), the Remarketing Agent shall use its commercially reasonable efforts to remarket remarket, at a price at least equal to [100.25%] of the Stated Amount, the Remarketed Debentures at Securities tendered or deemed tendered for purchase.
(d) If, as a result of the applicable Remarketing Price. For the avoidance of doubtefforts described in Section 2(b), the Company shall determine in its sole discretion if and when Remarketing Agent determines that it will be able to attempt an Optional Remarketing, as remarket all Remarketed Securities tendered or deemed tendered for purchase at a price at least equal to [100.25%] of the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In Stated Amount prior to 4:00 p.m. (New York City time) on the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify set the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless Reset Rate at a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread ) that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent determines to be the lowest rate per annum that will enable it to remarket all of the Remarketed Debentures Securities tendered or deemed tendered for purchase at no less than a price equal to [100.25%] of the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable lawStated Amount.
(e) upon receipt of the proceeds from the Remarketing, the Remarketing Agent shall:
(1) retain [25 basis points (.25%)] of the Stated Amount for the performance of its services as Remarketing Agent hereunder; and
(2) remit to the Collateral Agent all excess proceeds of the Remarketed Securities subject to the Pledge Agreement.
(f) If none of the holders of Remarketed Notes elects to have Remarketed Securities remarketed in the Remarketing, the Remarketing Agent shall determine the rate that would have been established had a Remarketing been held on the Remarketing Date, and such rate shall be the Reset Rate.
(g) If, by 4:00 p.m., p.m. (New York City time, ) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesSecurities tendered or deemed tendered for purchase, at a price not less than the applicable failed Remarketing Price pursuant ("Failed Remarketing") shall be deemed to the terms have occurred, and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall so advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDTC, the Purchase Contract Agent, the Collateral Agent Indenture Trustee and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest Reset Rate shall equal the Two-Year Benchmark Treasury rate on plus the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental IndentureApplicable Margin.
(fh) In the event of Provided that there has not been a Successful Failed Remarketing, by approximately 4:30 p.m., p.m. (New York City time, ) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the DepositoryDTC, the Purchase Contract Agent[, the Property Trustee, the Collateral Agent, the Custodial Agent the] Indenture Trustee and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined in the Debentures Remarketing and the aggregate principal amount number of Remarketed Debentures Securities sold in such the Remarketing;
(ii2) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures Securities of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Securities such purchaser is to purchase;; and
(iii3) each such purchaser (if other than a Depository Participant) to give instructions to its Depository the Depositary Participant to pay the purchase price on the Remarketing Purchase Contract Settlement Date in same day funds against delivery of the Remarketed Debentures Securities purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the RemarketingDTC.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Citigroup Global Markets Inc. as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] Citigroup Global Markets Inc. hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesSenior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) . Unless a Special Event Redemption or a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing a remarketing of the Senior Notes during the Optional Remarketing Period selected by the Company (an "Optional Remarketing") pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Senior Notes at the applicable Remarketing PricePrice on a date or dates selected by the Company during the Optional Remarketing Period (each, an "Optional Remarketing Date"). For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the either Optional Remarketing Period (either because the Remarketing Agent is unable to remarket the Senior Notes at the Remarketing Price or because a condition precedent to the Remarketing has not been satisfied) or no Optional Remarketing occurs on any during either Optional Remarketing Date, if anyPeriod, and unless a Special Event Redemption or a Termination Event has occurred prior to such date, on each Remarketing Date in a date or dates during the Final Remarketing PeriodPeriod selected by the Company (each, a "Final Remarketing Date"), the Remarketing Agent shall use its commercially reasonable efforts to remarket (the "Final Remarketing") the Remarketed Debentures Senior Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Final Remarketing Date in the Final Remarketing Period will be considered successful and no further attempts will be made if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Senior Notes should bear (such fixed or floating rate, the “"Reset Rate”") in order for the Remarketed Debentures Senior Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the sole reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Senior Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate rate shall not exceed the maximum interest rate permitted by applicable law.
(e) . If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i1) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesSenior Notes, other than to the Company, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii2) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDepositary, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Senior Notes will not be reset reset, and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) . In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
telephone (i) promptly confirmed in writing in the Depositorycase of clause (1)): the Depositary, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent Trustee and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined by the Debentures Remarketing Agent in such Remarketing and the aggregate principal amount of Remarketed Debentures Senior Notes sold in such Remarketing;
(ii) ; each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures Senior Notes of the Reset Rate and the aggregate principal amount of Remarketed Debentures Senior Notes such purchaser is to purchase;
(iii) ; each such purchaser (if other than a Depository Depositary Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Senior Notes purchased through the facilities of the DepositoryDepositary; and
(iv) and each such purchaser (or Depository Depositary Participant thereof) that the Remarketed Debentures Senior Notes will not be delivered until the Remarketing Settlement Date Date, and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Senior Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Senior Notes underlying the Applicable Ownership Interests in Debentures Senior Notes that are components of the Corporate Units shall be paid to the Collateral Agent in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement and (ii) with respect to the Separate Debentures, in each caseSenior Notes, shall be applied paid to the Custodial Agent for payment to the holders of such Separate Senior Notes in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
. The right of each holder of Remarketed Senior Notes to have such Remarketed Senior Notes remarketed and sold on any Remarketing Date shall be subject to the conditions that (hi) (A) the Remarketing Agent conducts any Optional Remarketing, or (B) in the case of a Final Remarketing, that no Successful Optional Remarketing has occurred, each pursuant to the terms of this Agreement and the Purchase Contract and Pledge Agreement, (ii) neither a Special Event Redemption nor a Termination Event has occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price based on the Reset Rate, and (iv) such purchaser or purchasers on the Remarketing Settlement Date of the Remarketed Senior Notes deliver the purchase price therefor to the Remarketing Agent as and when required. It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesSenior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender tender of Remarketed Debentures Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent Agent, nor any agent of either, shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures Senior Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Lehman Brothers Inc. as exclusive remarketing agent (the exclusive Remarketing "Remarkxxxxx Agent"), and, subject to the terms and conditions set forth herein, [ • ] hereby Lehman Brothers Inc. accepts appointment as Remarketing Agent, for the Agent fox xxx purpose of (i) remarketing the Remarketed Debentures Securities on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the The Remarketing Agent shall agrees (i) to use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when Securities tendered or deemed tendered to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion any Remarketing, (ii) to notify the Company of the new Fixed Rate, if any, established pursuant to any Remarketing and (iii) to carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify provisions of the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing AgentProcedures.
(c) If there On any date during which a Remarketing is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Periodbeing conducted, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures remarket, at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least a price equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period$1,000 per Depositary Share, Remarketed Securities tendered or deemed tendered for purchase.
(d) In connection with If, as a Remarketingresult of the Remarketing Agent's efforts described in Section 1(c), the Remarketing Agent has determined on any date during which a Remarketing is being conducted that it will be able to remarket all Remarketed Securities tendered or deemed tendered for purchase at a price of $1,000 per Depositary Share (including any accrued and unpaid distributions or interest, the "Remarketing Purchase Price") prior to 4:00 P.M., New York City time, on such date (any such date of determination, a "Remarketing Date"), the Remarketing Agent shall determinedetermine the Fixed Rate resulting from such Remarketing and to be applicable to the next succeeding Distribution Period, in consultation with the Company, which shall be the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of which the Remarketing Agent determines, in its sole judgment, to be the lowest rate per annum, if any, that will enable it to remarket all of Remarketed Securities tendered or deemed tendered for Remarketing at the Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable lawPurchase Price.
(e) IfIf any holder of Remarketed Securities submits a Notice of Election to tender some or all of its Depositary Shares in a Remarketing and separately notifies the Remarketing Agent that such holder desires to continue to hold a number of Depositary Shares, but only if the Fixed Rate determined by 4:00 p.m.the applicable Remarketing is not less than a specified rate per annum, the Remarketing Agent shall give priority to such holder's purchase of such number of Remarketed Securities in the Remarketing, provided that the new Fixed Rate is not less than such specified rate.
(f) By approximately 4:30 P.M., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed Debentures, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
, (i) the DepositoryDepository Trust Company (the "DTC") participant who will receive a credit for the Depositary Shares on DTC's records (the "Depositary Participant"), the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent Company and the Company (and promptly deliver a notice in writing to such Persons thereafter) Calculation Agent of the Reset any new Fixed Rate with respect established pursuant to the Debentures Remarketing and the aggregate principal amount number of Remarketed Debentures Securities sold in such the Remarketing;
, (ii) each purchaser of Remarketed Securities (or the Depository Depositary Participant thereof) of Remarketed Debentures of the Reset such new Fixed Rate and the aggregate principal amount number of Remarketed Debentures Securities such purchaser is to purchase;
purchase and (iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Securities purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the RemarketingDepositary Participant.
(g) The proceeds from a Successful If, by 4:00 P.M., New York City time, on the third business day prior to the Remarketing Settlement Date applicable to the Remarketing (isuch third business day, a "Remarketing Expiration Date") with respect the Remarketing Agent is unable to remarket all Remarketed Securities tendered or deemed tendered for purchase at the Debentures underlying Remarketing Price, the Applicable Ownership Interests in Debentures Remarketing Agent shall, by approximately 4:30 P.M., New York City time, on such date, advise by telephone the Depositary Participant, the Company and the Calculation Agent that are components of the Corporate Units and (ii) with respect to Distribution Rate for the Separate Debentures, in each case, shall Series G Preferred Shares for the next succeeding Distribution Period will be applied a Floating Rate determined in accordance with Section 5.02 of the Purchase Contract and Pledge AgreementSeries G Articles Supplementary.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Remarketing Agreement (First Industrial Realty Trust Inc)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Credit Suisse First Boston as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] Credit Suisse First Boston hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures on behalf of the holders thereof, Holders thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures (the procedures in connection with the Remarketing of the Debentures described in the Indenture, the Purchase Contract Agreement and the Pledge Agreement), all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the The Remarketing Agent shall agrees (i) to use its commercially reasonable efforts to remarket the Remarketed Debentures at tendered or deemed tendered to the applicable Remarketing Price. For Agent in the avoidance of doubtRemarketing, (ii) to notify the Company shall determine of the Interest Rate and (iii) to carry out such other duties as are assigned to the Remarketing Agent in its sole discretion if and when to attempt an Optional Remarketingthe Remarketing Procedures, as all in accordance with the Company may commence or postpone or cancel an Optional provisions of the Remarketing in its absolute and sole discretion. In Procedures.
(c) On the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures remarket, at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least a price equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days 100.50% of the Final Remarketing Periodprincipal amount thereof, the Debentures tendered or deemed tendered for purchase.
(d) In connection with a If none of the Holders of Units elects to have their Debentures remarketed in the Remarketing, the Remarketing Agent shall determinedetermine the Interest Rate, in consultation with the Companyits sole discretion, which shall be the rate per annumthat would have been established had a remarketing been held on the Remarketing Date.
(e) If, rounded to as a result of the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as efforts described in Section 2(i)(32(b), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent determines that it will enable it be able to remarket all of the Remarketed Debentures tendered or deemed tendered for purchase at no less than a price of 100.50% of their aggregate principal amount prior to 4:00 p.m., New York City time, on the applicable Remarketing Price in such Remarketing; provided that such Reset Rate Date, the Remarketing Agent shall not exceed determine the maximum interest Interest Rate, which shall be (i) the rate permitted by applicable law.per
(ef) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesDebentures tendered or deemed tendered for purchase, at a price not less than the applicable Remarketing Price pursuant "Failed Remarketing" shall be deemed to the terms have occurred, and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall so advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDepositary, the Purchase Contract AgentCompany, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing AgentTrustee. In the event of a Failed Remarketing, the applicable interest rate on Interest Rate shall equal (i) the Debentures will not be reset and will continue to be Two-Year Benchmark Treasury Rate plus (ii) the Coupon Rate set forth in the Supplemental IndentureApplicable Margin.
(fg) In the event of a Successful Remarketing, by By approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, provided that there has not been a Failed Remarketing, the Remarketing Agent shall advise, advise by telephone:
telephone (i) the DepositoryDepositary, the Purchase Contract AgentCompany, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) Trustee of the Reset Interest Rate with respect to determined in the Debentures Remarketing and the aggregate principal amount of Remarketed the Debentures sold in such the Remarketing;
, (ii) each purchaser (or the Depository Participant thereofDepositary participant of a purchaser) of Remarketed Debentures of the Reset Interest Rate and the aggregate principal amount of Remarketed Debentures such purchaser is to purchase;
, and (iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant Depositary participant to pay the purchase price Purchase Price on the Remarketing Purchase Contract Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; andDepositary.
(ivh) each such purchaser (or Depository Participant thereof) that Subject to Section 4 of this Agreement, the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by remit to the Securities Act, deliver, in conformity with the requirements Collateral Agent all of the Securities Act, to each purchaser a Prospectus in connection with Proceeds of the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect of the Debentures subject to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(hi) It is understood and agreed that the The Remarketing Agent shall is not have any obligation whatsoever obligated to purchase any Remarketed Debentures, whether Debentures that otherwise would remain unsold in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this AgreementRemarketing. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures for Remarketing.
(ij) Notwithstanding anything The tender and settlement procedures set forth in Article 7 of the Supplemental Indenture, including provisions for payment by purchasers of the Debentures in the Remarketing, shall be subject to modification to the contrary hereinextent required by the Depositary or, it if the book-entry system is understood and agreed that in connection with any no longer available for the Debentures at the time of the Remarketing, to facilitate the Company may electtendering and remarketing of the Debentures in certificated form. In addition, in consultation with the Remarketing Agent to, among other things, remarket may modify the Debentures as fixed-rate notes or floating-rate notes and, settlement procedures set forth in Article 7 of the case of floating-rate notes, provide that Supplemental Indenture in order to facilitate the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate)settlement process.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Citigroup Global Markets Inc. as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] Citigroup Global Markets Inc. hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesSenior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) . Unless a Special Event Redemption or a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company to occur pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket (the "Optional Remarketing") the Remarketed Debentures Senior Notes at the applicable Remarketing PricePrice on a date or dates selected by the Company during the Optional Remarketing Period (each an "Optional Remarketing Date"). For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the either Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if anyany (either because the Remarketing Agent is unable to remarket the Senior Notes at the Remarketing Price or because a condition precedent to the Remarketing has not been satisfied), and unless a Special Event Redemption or a Termination Event has occurred prior to such date, on each Remarketing Date in a date or dates during the Final Remarketing PeriodPeriod selected by the Company (each a "Final Remarketing Date"), the Remarketing Agent shall use its commercially reasonable efforts to remarket (the "Final Remarketing") the Remarketed Debentures Senior Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Final Remarketing Date in the Final Remarketing Period will be considered successful and no further attempts will be made if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Senior Notes should bear (such fixed or floating rate, the “"Reset Rate”") in order for the Remarketed Debentures Senior Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the sole reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Senior Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate rate shall not exceed the maximum interest rate permitted by applicable law.
(e) . If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i1) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesSenior Notes, other than to the Company, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii2) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDepositary, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Senior Notes will not be reset reset, and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) . In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
telephone (i) promptly confirmed in writing in the Depositorycase of clause (1)): the Depositary, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent Trustee and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined by the Debentures Remarketing Agent in such Remarketing and the aggregate principal amount number of Remarketed Debentures Senior Notes sold in such Remarketing;
(ii) ; each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures Senior Notes of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Senior Notes such purchaser is to purchase;
(iii) ; each such purchaser (if other than a Depository Depositary Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Senior Notes purchased through the facilities of the DepositoryDepositary; and
(iv) and each such purchaser (or Depository Depositary Participant thereof) that the Remarketed Debentures Senior Notes will not be delivered until the Remarketing Settlement Date Date, and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Senior Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Senior Notes underlying the Applicable Ownership Interests in Debentures Senior Notes that are components of the Corporate Units shall be paid to the Collateral Agent in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement and (ii) with respect to the Separate Debentures, in each caseSenior Notes, shall be applied paid to the Custodial Agent for payment to the holders of such Separate Senior Notes in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
. The right of each holder of Remarketed Senior Notes to have such Remarketed Senior Notes remarketed and sold on any Remarketing Date shall be subject to the conditions that (hi) (A) the Remarketing Agent conducts any Optional Remarketing, or (B) in the case of a Final Remarketing, that no Successful Optional Remarketing has occurred, each pursuant to the terms of this Agreement, (ii) neither a Special Event Redemption nor a Termination Event has occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price based on the Reset Rate, and (iv) such purchaser or purchasers on the Remarketing Settlement Date of the Remarketed Senior Notes deliver the purchase price therefor to the Remarketing Agent as and when required. It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesSenior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender tender of Remarketed Debentures Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures Senior Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company Company, the Purchase Contract Agent and the Trust hereby appoints [ • ] appoint ____________ as the exclusive Remarketing Agent (the "Remarketing Agent, and, subject to the terms ") and conditions set forth herein, [ • ] ________________ hereby accepts appointment as Remarketing Agent, for the purpose of (i) the remarketing ("Remarketing") the Remarketed Debentures Trust Preferred Securities pursuant to the remarketing procedures, as set forth in the Purchase Contract Agreement, the Pledge Agreement and the Declaration, as the case may be (such procedures, the "Remarketing Procedures"), on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures and the Declaration, all in accordance with and pursuant to the Remarketing Procedures and the Declaration.
(b) Unless a Termination Event has occurred prior The Remarketing Agent agrees (i) to such date, if use commercially reasonable best efforts to remarket the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant Remarketed Trust Preferred Securities (as defined below) tendered or deemed tendered to the Purchase Contract Remarketing Agent in the Remarketing, (ii) to notify the Company, the Trust, the Depositary and Pledge Agreementthe Indenture Trustee promptly of the Reset Rate (as defined in the Declaration) in accordance with the Declaration and (iii) to establish the Reset Rate and carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures and the Declaration.
(c) On the third Business Day immediately preceding February 15, 2004 (the "Remarketing Date"), the Remarketing Agent shall use its commercially reasonable best efforts to remarket remarket, at a price equal to at least 100.25% of the Remarketing Value, the Remarketed Debentures at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence Trust Preferred Securities tendered or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Perioddeemed tendered for purchase.
(d) In connection with If, as a Remarketingresult of the efforts described in Section 1(b), the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects determines that it will be able to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the all Remarketed Debentures should bear (such fixed Trust Preferred Securities tendered or floating rate, the “Reset Rate”) in order deemed tendered for the Remarketed Debentures to have an aggregate market value equal to purchase at a price of at least the applicable Remarketing Price and that in the reasonable discretion 100.25% of the Remarketing Agent will enable it Value prior to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m.P.M., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall (i) determine the Reset Rate that will enable it to remarket all Remarketed Trust Preferred Securities tendered or deemed tendered for Remarketing, but in no event will the Reset Rate be lower than 7.00% (the initial rate), and (ii) commit to purchase, on a third-day settlement basis, and on the third Business Day following the Remarketing Date (the "Remarketing Date"), shall purchase, the Agent-purchased Treasury Consideration (as defined in the Purchase Contract Agreement).
(e) If, notwithstanding the efforts described in Section 1(b), the Remarketing Agent cannot remarket the Trust Preferred Securities on the Remarketing Date, the Remarketing Agent will continue to attempt to remarket the Trust Preferred Securities on one or more occasions until the Purchase Contract Date (as defined in the Purchase Contract Agreement) in accordance with the Remarketing Procedures and the Declaration (each such remarketing, the "Subsequent Remarketing"), provided that (i) the notice of any Subsequent Remarketing Agent is unable to Remarket all cannot be given until the Failed Remarketing notice has been published in accordance with the Remarketing Procedures in respect of the Remarketed Debentures, at a price not less than the applicable any immediately proceeding Failed Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur Date in respect of any Subsequent Remarketing must fall no later than on such Remarketing Date because one of the conditions set forth Business Day (as defined in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, Agreement) immediately preceding the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined Purchase Contract Date (as defined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental IndenturePurchase Contract Agreement).
(f) In the event of a Successful RemarketingIf, by approximately 4:30 p.m.4:00 P.M., New York City time, on the applicable Remarketing Date (including a Remarketing Date of any Subsequent Remarketing), the Remarketing Agent is unable to remarket all the Trust Preferred Securities subject to the Remarketing as notified to the Remarketing Agent by the Purchase Contract Agent and the Custodial Agent, on or prior to the first Business Day prior to the Remarketing Date (the "Remarketed Trust Preferred Securities") tendered or deemed tendered for purchase, a failed Remarketing ("Failed Remarketing") shall be deemed to have occurred, and the Remarketing Agent shall, on such date, so advise by telephone the Purchase Contract Agent, the Indenture Trustee, the Company, the Trust, the Collateral Agent and the Property Trustee.
(g) On the third Business Day following the Failed Remarketing, the Remarketing Agent shall remit (i) to the Collateral Agent the Remarketed Trust Preferred Securities comprised of the Pledged Trust Preferred Securities, and (ii) to the Custodial Agent the balance of the Remarketed Trust Preferred Securities.
(h) By approximately 4:30 P.M., New York City time, on the Remarketing Date (or any Subsequent Remarketing Date), provided that there has not been a Failed Remarketing, the Remarketing Agent shall advise, by telephone:
telephone (i) the DepositoryCompany, the Trust, the Purchase Contract Agent, the Depositary and the Indenture Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined in the Debentures Remarketing and the aggregate principal amount number of Remarketed Debentures sold Trust Preferred Securities remarketed in such the Remarketing;
, (ii) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures purchasing Preferred Securities sold in the Remarketing of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Preferred Securities such purchaser is to purchase;
purchase and (iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Purchase Contract Settlement Date in same day funds against delivery of the Remarketed Debentures Preferred Securities purchased through the facilities of the Depository; andDepositary.
(ivi) each such purchaser (or Depository Participant thereof) that In accordance with the Remarketed Debentures will not be delivered until Depositary's normal procedures, on the Remarketing Settlement Date Date, the transactions described above with respect to each Trust Preferred Security tendered for purchase and remarketed in the Remarketing shall be executed through the Depositary, and the accounts of the respective Depositary participants shall be debited and credited, respectively, and such Trust Preferred Securities delivered by book-entry as necessary to effect purchases and remarketings of such Trust Preferred Securities.
(if applicablej) that if such purchaser wishes On the Remarketing Date, the tender and settlement procedures set in this Section 1, including provisions for payment by purchasers of the Trust Preferred Securities in the Remarketing, shall be subject to trade the Remarketed Debentures that it has purchased prior modification to the second Business Day preceding extent required by the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle Depositary or if the book-entry system is no longer available for the Trust Preferred Securities at the time of any such trade the Remarketing, to prevent failed settlementfacilitate the tendering and remarketing of the Trust Preferred Securities in certificated form. In addition, the Remarketing Agent may modify the settlement procedures set forth herein in order to facilitate the settlement process.
(k) On the Remarketing Date, the Remarketing Agent shall remit to the Collateral Agent through the Purchase Contract Agent and the Agent-purchased Treasury Consideration, as defined in the Purchase Contract Agreement.
(l) On the Remarketing Date, the Remarketing Agent shall retain as a remarketing fee for itself an amount not exceeding 25 basis points (0.25%) of the total proceeds from the sale of the Remarketed Capital Securities. The Remarketing Agent shall also(i) use the portion of the proceeds attributable to the Preferred Securities that were components of Equity Securities Units to purchase (in open market or at treasury auction, in its discretion) the amount and types of U.S. Treasury Securities set forth in clauses (A) and (B) of Section 7.13(o) of the Declaration of the definition of "Remarketing Value" (as defined in the Declaration) and shall deliver such securities through the Purchase Contract Agent to the Collateral Agent to secure the obligations under the related purchase contracts of the Holders of Equity Security Units whose Preferred Securities were included in the Remarketing. The Remarketing Agent shall remit the portion of the proceeds attributable to the Preferred Securities that were not components of Equity Security Units to the holders of such Preferred Securities. The Remarketing Agent shall remit any remaining balance of the proceeds, if required by any, to the Securities Act, deliver, in conformity with Purchase Contract Agent for the requirements benefit of the Securities Act, to each purchaser a Prospectus Holders of Equity Security Units participating in connection with the Remarketing.
(gm) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, Trust Preferred Securities is also provided for in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year Pledge Agreement and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate)Declaration.
Appears in 1 contract
Samples: Remarketing Agreement (Raytheon Co/)
Appointment and Obligations of the Remarketing Agent. (a) The Company Company, Capital Markets and the Trust (collectively, the "Issuers") hereby appoints [ • ] appoint Xxxxxx Brothers Inc. as exclusive remarketing agent (the exclusive "Remarketing Agent"), and, subject to the terms and conditions set forth herein, [ • ] Xxxxxx Brothers Inc. hereby accepts appointment as Remarketing Agent, Agent for the purpose of (i) remarketing the Remarketing Remarketed Debentures Securities on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the The Remarketing Agent shall agrees (i) to use its commercially reasonable efforts to remarket the Remarketed Debentures at Securities tendered or deemed tendered to the applicable Remarketing Price. For Agent in the avoidance Remarketing, (ii) to notify the Issuers promptly of doubtthe Reset Rate and (iii) to carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures.
(c) On the third Business Day immediately preceding the Purchase Contract Settlement Date (the "Remarketing Date"), the Company Remarketing Agent shall use commercially reasonable efforts to remarket, at a price equal to 100% of the aggregate liquidation or principal amount thereof, Remarketed Securities tendered or deemed tendered for purchase.
(d) If none of the holders of Remarketed Securities elect to have Remarketed Securities held by them remarketed in the Remarketing, the Remarketing Agent shall determine in its sole discretion if and when to attempt an Optional Remarketingthe Reset Rate which shall be the rate that would have been established had a Remarketing been held on the Remarketing Date.
(e) If, as a result of the Company may commence efforts described in Section 1(b), the Remarketing Agent has determined that it will be able to remarket all Remarketed Securities tendered or postpone deemed tendered for purchase at a price of 100% of the aggregate stated liquidation or cancel an Optional Remarketing in its absolute and sole discretion. In the case principal amount of an Optional Remarketingsuch Remarketed Securities prior to 4:00 P.M., New York City time, on any the Remarketing Date, the Remarketing Agent shall notify determine the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury PortfolioReset Rate, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of which the Remarketing Agent determines, in its sole judgment, to be the lowest rate per annum that will enable it to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Securities tendered or deemed tendered for Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(ef) If, by 4:00 p.m.P.M., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesSecurities tendered or deemed tendered for purchase, at a price not less than the applicable failed Remarketing Price pursuant ("Failed Remarketing") shall be deemed to the terms have occurred and conditions hereof or (ii) the Remarketing did ---------- 1 Current version of Indenture does not occur on such Remarketing Date because one of provide for remarketing and will need to be so amended in the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Supplement. Agent shall so advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDepositary, the Purchase Contract AgentProperty Trustee, the Collateral Agent and Debenture Trustee, the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset Trust and will continue to be the Coupon Rate set forth in the Supplemental IndentureCapital Markets.
(fg) In the event of a Successful Remarketing, by By approximately 4:30 p.m.P.M., New York City time, on the applicable Remarketing Date, provided that there has not been a Failed Remarketing, the Remarketing Agent shall advise, by telephone:
telephone (i) the DepositoryDepositary, the Purchase Contract Agent, the Property Trustee, the Collateral AgentDebenture Trustee, the Custodial Agent Company, the Trust and the Company (and promptly deliver a notice in writing to such Persons thereafter) Capital Markets of the Reset Rate with respect to determined in the Debentures Remarketing and the aggregate principal amount number of Remarketed Debentures Securities sold in such the Remarketing;
, (ii) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Securities such purchaser is to purchase;
purchase and (iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Purchase Contract Settlement Date in same day funds against delivery of the Remarketed Debentures Securities purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge AgreementDepositary.
(h) It is understood and agreed that the The Remarketing Agent shall not have any obligation whatsoever remit to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Collateral Agent shall be obligated in any case to provide funds to make payment upon surrender all proceeds of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything Securities subject to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate)Pledge Agreement.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • [—] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • [—] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Fourth Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two three Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed DebenturesNotes, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset and will continue to be the Coupon Rate set forth in the Fourth Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures Notes and the aggregate principal amount of Remarketed Debentures Notes sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures Notes of the Reset Rate and the aggregate principal amount of Remarketed Debentures Notes such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units and (ii) with respect to the Separate DebenturesNotes, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Dominion Resources Inc /Va/)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] as exclusive ------------------------- remarketing agent (the exclusive "Remarketing Agent"), and, subject to the terms and conditions set forth herein, [ • ] ------------------------- hereby accepts appointment as Remarketing Agent, for the purpose of (i1) remarketing Remarketing the Remarketed Debentures Remarketing Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, thereof and (iii2) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior The Remarketing Agent agrees to such date, if (1) use commercially reasonable efforts to remarket the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant Senior Notes tendered or deemed tendered to the Purchase Contract Remarketing Agent in the Remarketing, (2) provide prompt notice of the Reset Rate as set forth in this Agreement and Pledge Agreement(3) carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures.
(c) On (the "Initial Remarketing Date"), the Remarketing ----------------- Agent shall use its commercially reasonable efforts to remarket (the Remarketed Debentures "Initial Remarketing") the Remarketing Senior Notes at a price at least equal to the applicable Remarketing PriceValue under the Remarketing Procedures. For the avoidance If, as a result of doubtsuch efforts, the Company shall determine in its sole discretion if and when Remarketing Agent determines that it will be able to attempt an Optional Remarketing, as remarket all of the Company may commence Remarketing Senior Notes tendered or postpone or cancel an Optional deemed tendered for purchase at a price at least equal to the Remarketing in its absolute and sole discretion. In Value before 4:00 p.m. (New York City time) on the case of an Optional Remarketing, on any Initial Remarketing Date, the Remarketing Agent shall notify determine the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) Reset Rate that will constitute enable it to remarket all Remarketing Senior Notes tendered or deemed tendered for Remarketing at an interest rate on the Treasury Portfolio, which will be selected by Initial Remarketing Date sufficient to allow the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein occur at a price equal to the Remarketing AgentValue.
(cd) If there is no Successful Optional Remarketing during If, despite the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date commercially reasonable efforts described in the Final Remarketing Periodpreceding paragraph, the Remarketing Agent shall cannot remarket the Remarketing Senior Notes on the Initial Remarketing Date, the Remarketing Agent will continue to use its commercially reasonable efforts to remarket the Remarketed Debentures Remarketing Senior Notes (i) on one or more subsequent occasions from the Initial Remarketing Date to, and including, the ninth Business Day preceding the Purchase Contract Settlement Date and (ii) if necessary, on the third Business Day preceding the Purchase Contract Settlement Date, and in connection therewith to determine the Reset Rate at an interest rate on the applicable Remarketing Price. It is understood Date, if any, sufficient to allow the Remarketing at a price equal to the Remarketing Value as set forth herein and agreed that (each such subsequent Remarketing up to and including the ninth Business Day preceding the Purchase Contract Settlement Date being referred to as a "Subsequent Remarketing" and each such date to be referred to as, a "Subsequent Remarketing Date"; and the Remarketing on any the third Business Day preceding the Purchase Contract Settlement Date, being referred to as the "Final Remarketing" and such date to be referred to as, the "Final Remarketing Date Date;"), in each case in accordance with the Remarketing Procedures; provided, however, that, the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, if at all, must occur no later than on the Remarketing Agent shall determine, in consultation with third Business Day immediately preceding the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable lawPurchase Contract Settlement Date.
(e) IfIf the Initial Remarketing, by 4:00 p.m.any Subsequent Remarketing or the Final Remarketing is successful (respectively, New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all a "Successful Initial Remarketing," a "Successful Subsequent Remarketing" or a "Successful Final Remarketing"; any of the Remarketed Debenturesforegoing, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent "Successful Remarketing"; and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event date of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable "Remarketing Date"), the Remarketing Agent shall advise, by telephonethen:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures and the aggregate principal amount of Remarketed Debentures sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount of Remarketed Debentures such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Remarketing Agreement (Dominion Resources Capital Trust Iv)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Xxxxxx Brothers Inc. as exclusive remarketing agent (the exclusive "Remarketing Agent"), and, upon the terms and subject to the conditions set forth in this Agreement, Xxxxxx Brothers Inc. hereby accepts such appointment. The Remarketing Agent agrees to (1) use its commercially reasonable efforts to remarket the Remarketing Senior Notes tendered to the Remarketing Agent, and, subject pursuant to the terms Indenture and conditions set forth herein, [ • ] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures on behalf of the holders thereof, (ii) determining, in consultation with the CompanyPurchase Contract Agreement, in the manner provided for herein and Remarketing and, in connection therewith, to determine the Purchase Contract and Pledge Reset Rate as set forth in this Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, Indenture and (iii2) performing carry out such other duties as are assigned to the Remarketing Agent herein, in each case, in accordance with the Transaction DocumentsRemarketing Procedures.
(b) Unless a Termination Event has occurred prior to such dateOn August 10, if 2005 (the Company elects to conduct an Optional "Initial Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge AgreementDate"), the Remarketing Agent shall use its commercially reasonable efforts to remarket (the Remarketed Debentures "Initial Remarketing"), at a price at least equal to the applicable Remarketing Price. For the avoidance of doubtValue, the Company shall determine in its sole discretion if Remarketing Senior Notes tendered for purchase, pursuant to the Remarketing Procedures upon notification of the aggregate principal amount of such Remarketing Senior Notes by the Purchase Contract Agent and when the Collateral Agent pursuant to attempt an Optional RemarketingSection 5.3 of the Purchase Contract Agreement. If, as a result of such efforts, the Company may commence Remarketing Agent determines that it will be able to remarket all of the Remarketing Senior Notes tendered or postpone or cancel an Optional deemed tendered for purchase at a price at least equal to the Remarketing in its absolute and sole discretion. In Value prior to 4:00 p.m. (New York City time) on the case of an Optional Remarketing, on any Initial Remarketing Date, the Remarketing Agent shall notify determine the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) Reset Rate that will constitute enable it to remarket all Remarketing Senior Notes tendered or deemed tendered for Remarketing at an interest rate on the Treasury Portfolio, which will be selected by Initial Remarketing Date sufficient to allow the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein occur at a price equal to the Remarketing AgentValue.
(c) If there is no Successful Optional Remarketing during If, despite the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date commercially reasonable efforts described in the Final Remarketing Periodpreceding paragraph, the Remarketing Agent shall cannot remarket the Remarketing Senior Notes on the Initial Remarketing Date, the Remarketing Agent will continue to use its commercially reasonable efforts to remarket the Remarketed Debentures Remarketing Senior Notes (i) on one or more subsequent occasions from the Initial Remarketing Date to, and including, the ninth Business Day preceding the Purchase Contract Settlement Date and (ii) if necessary, on the third Business Day preceding the Purchase Contract Settlement Date, and in connection therewith to determine the Reset Rate at an interest rate on the applicable Remarketing Price. It is understood Date, if any, sufficient to allow the Remarketing at a price equal to the Remarketing Value as set forth herein and agreed that (each such subsequent Remarketing up to and including the ninth Business Day preceding the Purchase Contract Settlement Date being referred to as a "Subsequent Remarketing," and each such date to be referred to as, a "Subsequent Remarketing Date"; and the Remarketing on any the third Business Day preceding the Purchase Contract Settlement Date, being referred to as the "Final Remarketing," and such date to be referred to as, the "Final Remarketing Date Date;"), in each case in accordance with the Remarketing Procedures, PROVIDED that, the Final Remarketing Period will be considered successful Remarketing, if at all, must occur no later than on the resulting proceeds are at least equal to third Business Day immediately preceding the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing PeriodPurchase Contract Settlement Date.
(d) If any Remarketing is successful (a "Successful Remarketing" and, such date to be referred to as the "Remarketing Date"), then:
(i) By approximately 4:30 p.m. (New York City time) on such Remarketing Date, (A) the Remarketing Agent shall advise by telephone the Company, the Purchase Contract Agent, the Collateral Agent, the Securities Intermediary, the Depositary and the Trustee, of the Reset Rate determined in the Remarketing, (B) the Remarketing Agent shall advise each purchaser or DTC participant (the "Depositary Participant") thereof purchasing Senior Notes sold in the Remarketing of the Reset Rate and the number of Senior Notes such purchaser is to purchase and (C) the Remarketing Agent shall request each purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day after the Remarketing Date (the "Remarketing Settlement Date") in same day funds against delivery of the remarketed Remarketing Senior Notes purchased through the facilities of the Depositary. In connection accordance with the Depositary's normal procedures, on the Remarketing Settlement Date or the Purchase Contract Settlement Date, as applicable, the transactions described above with respect to each Senior Notes remarketed in the Remarketing shall be executed through the Depositary, and the accounts of the respective Depositary Participants shall be debited and credited, respectively, and such Remarketing Senior Notes delivered by book-entry, as necessary to effect purchases and sales of such Remarketing Senior Notes; PROVIDED that, the settlement procedures set forth herein, including provisions for payment by purchasers of the Remarketing Senior Notes in the Remarketing, shall be subject to modification to the extent required by the Depositary or if the book-entry system is no longer available for the Remarketing Senior Notes at the time of the Remarketing, to facilitate the remarketing of the Remarketing Senior Notes in certificated form and the Remarketing Agent may modify such settlement procedures in order to facilitate the settlement process.
(ii) Upon receipt of the proceeds from a Successful Remarketing, the Remarketing Agent shall determineshall:
(A) deduct and retain for itself an amount equal to .25% of the principal amount of the remarketed Remarketing Senior Notes as a fee for the performance of its services as Remarketing Agent hereunder;
(B) (I) if the Successful Remarketing occurs prior to the third Business Day preceding the Purchase Contract Settlement Date, use the remaining proceeds with respect to the Pledged Senior Notes from such Successful Remarketing to purchase the Treasury Portfolio, in consultation with open market transactions and/or at Treasury auctions, in the Company, amount and types of Treasury securities described in clauses (1)(i) and (2)(i) of the rate per annum, rounded definition of Remarketing Value related to the nearest one-thousandth Pledged Senior Notes, deliver such Treasury Portfolio, along with notification thereof, to the Collateral Agent on the Remarketing Settlement Date or as soon thereafter as is practicable, or (0.001II) if such Successful Remarketing occurs on the Final Remarketing Date, remit to the Collateral Agent the portion of the remaining proceeds with respect to the Pledged Senior Notes from such Successful Remarketing to be delivered to the Purchase Contract Agent in settlement of the Purchase Contracts on the Purchase Contract Settlement Date;
(C) if any Separated Senior Notes were included in such successful Remarketing, remit to the Collateral Agent, along with notification thereof, for payment to the holders of such Separated Senior Notes sold in such Successful Remarketing the remaining proceeds with respect to such remarketed Separated Senior Notes from the Remarketing, less the remarketing fee, equal to the amounts described in clauses (1)(ii) and (2)(ii) of one percent per annumthe definition of Remarketing Value; and
(D) remit, oralong with notification thereof, any remaining balance of such proceeds after the application of such proceeds as set forth in clauses (A) through (C) above, if any, to the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order Purchase Contract Agent for the Remarketed Debentures benefit of the Holders of the remarketed Pledged Senior Notes and to have an aggregate market value equal to at least the applicable Collateral Agent for the for the holders of any remarketed Separated Senior Notes, on a pro rata basis; PROVIDED, HOWEVER, that if such Successful Remarketing Price and that in the is consummated after 4:30 p.m. (New York City time) on such Remarketing Date and, despite using its commercially reasonable discretion of efforts, the Remarketing Agent will enable it to remarket all cannot cause the applications of the Remarketed Debentures at no less than proceeds specified above to occur on such Remarketing Date, then the applicable Remarketing Price Agent may make such applications and remittances on the next succeeding Business Day. The Remarketing Agent may, in such Remarketing; provided its discretion, communicate with holders of the Senior Notes, and prospective purchasers of Remarketing Senior Notes, in connection with its remarketing efforts in order to facilitate the remarketing and the intent and purpose of this Agreement despite the fact that such Reset Rate shall communication may not exceed the maximum interest rate permitted by applicable lawbe expressly required herein.
(e) If, by 4:00 p.m., p.m. (New York City time, ) on the applicable Remarketing ninth Business Day preceding the Purchase Contract Settlement Date, (i) the Remarketing Agent Agent, despite using its commercially reasonable efforts, has been and is unable to Remarket remarket all of the Remarketed Debentures, Remarketing Senior Notes tendered for purchase at a price not less than the applicable Remarketing Price pursuant equal to the terms and conditions hereof or (ii) at least the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfiedValue, the Remarketing Agent shall advise Transfer to the Collateral Agent, along with notification thereof, by the sixth Business Day preceding the Purchase Contract Settlement Date, the Pledged Senior Notes that were to be remarketed in the Initial Remarketing or Subsequent Remarketing, whereupon the Collateral Agent shall, for the benefit of the Company, apply such Pledged Senior Notes to secure the obligation of the related Holders of Corporate PIES to purchase Common Stock under the related Purchase Contracts.
(f) If, (1) by 4:00 p.m. (New York City time), on the Final Remarketing Date, the Remarketing Agent, despite using its commercially reasonable efforts, has been and is unable to remarket all of the Remarketing Senior Notes tendered for purchase at a price equal to at least the Remarketing Value, or (2) the Remarketing Agent has determined that the Remarketing may not be commenced or consummated as contemplated herein and by the Remarketing Procedures under applicable law, a failed Remarketing (a "Failed Remarketing") shall be deemed to have occurred. If a Failed Remarketing occurs, the Remarketing Agent and the Company, as applicable, shall take the following actions:
(i) The Remarketing Agent shall notify by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryCompany, the Depositary, Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been Trustee, that a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenturehas occurred.
(fii) In The Company shall cause a notice of the event Failed Remarketing to be sent to the holders of a Successful Remarketingall Senior Notes and to be published, by approximately 4:30 p.m.in an Authorized Newspaper, New York City timein each case, on no later than the applicable Remarketing Business Day preceding the Purchase Contract Settlement Date, the .
(iii) The Remarketing Agent shall advisedetermine the Reset Rate that will be equal to the Two Year Benchmark Treasury plus the Applicable Spread in accordance to paragraph 19(ii) of the Indenture Officers' Certificate.
(iv) The Remarketing Agent shall remit the Pledged Senior Notes that were to be remarketed to the Purchase Contract Agent and the Separated Senior Notes that were to be remarketed to the Collateral Agent.
(g) If all of the holders of Corporate PIES elect not to participate in the Remarketing and no holders of Separated Senior Notes elect to participate in the Remarketing and deliver such Separated Senior Notes and a notice of such election to the Collateral Agent by the Election Date, by telephonein accordance with the Indenture Officers' Certificate, then:
(i) the DepositoryRemarketing Agent shall, in its sole discretion, determine the Purchase Contract Agentrate that, in its judgment, would have been established had a Remarketing been held on the TrusteeFinal Remarketing Date, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of rate shall be the Reset Rate with respect to the Debentures and the aggregate principal amount of Remarketed Debentures sold in such RemarketingRate;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures of Remarketing Agent shall advise by telephone the Reset Rate Company, the Depositary and the aggregate principal amount Trustee of Remarketed Debentures such purchaser is to purchase;Reset Rate; and
(iii) each the Company shall cause a notice of such purchaser (if other than a Depository Participant) Reset Rate to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior sent to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have holders of all Senior Notes and to specify be published in an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate DebenturesAuthorized Newspaper, in each case, shall be applied in accordance with Section 5.02 of no later than the Business Day preceding the Purchase Contract and Pledge AgreementSettlement Date.
(h) It is understood and agreed that the The Remarketing Agent shall not have any obligation whatsoever notify the Company, by the [tenth] Business Day prior to purchase any Remarketed Debenturesthe Initial Remarketing Date, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures specific U.S. Treasury security or securities (including the CUSIP number(s) and/or the principal terms of such Treasury security for Remarketing.
(isecurities) Notwithstanding anything to the contrary herein, it is understood and agreed that must be delivered by holders of Corporate PIES in connection with any Remarketing, such holders' creation of Treasury PIES pursuant to the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate)Purchase Contract Agreement.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Banc of America Securities LLC as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • ] Banc of America Securities LLC hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesSenior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Special Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. For the avoidance of doubt, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence Redemption or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each the fifth Business Day immediately preceding the Purchase Contract Settlement Date (the “Initial Remarketing Date in the Final Remarketing PeriodDate”), the Remarketing Agent shall use its commercially reasonable efforts to remarket (the “Initial Remarketing”) the Remarketed Debentures Senior Notes at the applicable Remarketing Price.
(c) In the case of a Failed Remarketing on the Initial Remarketing Date and unless a Special Event Redemption or a Termination Event has occurred prior to such date, on the fourth Business Day immediately preceding the Purchase Contract Settlement Date (the “Second Remarketing Date”), the Remarketing Agent shall use its reasonable efforts to remarket (the “Second Remarketing”) the Remarketed Senior Notes at the Remarketing Price. In the case of a Failed Remarketing on the Second Remarketing Date and unless a Special Event Redemption or a Termination Event has occurred prior to such date, on the third Business Day immediately preceding the Purchase Contract Settlement Date (the “Final Remarketing Date”), the Remarketing Agent shall use its reasonable efforts to remarket (the “Final Remarketing”) the Remarketed Senior Notes at the Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful and no further attempts will be made if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Senior Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Senior Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the sole reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Senior Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i1) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesSenior Notes, other than to the Company, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii2) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDepositary, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:telephone (promptly confirmed in writing in the case of clause (1)):
(i1) the DepositoryDepositary, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent Trustee and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to determined by the Debentures Remarketing Agent in such Remarketing and the aggregate principal amount number of Remarketed Debentures Senior Notes sold in such Remarketing;
(ii2) each purchaser (or the Depository Depositary Participant thereof) of Remarketed Debentures Senior Notes of the Reset Rate and the aggregate principal amount number of Remarketed Debentures Senior Notes such purchaser is to purchase;
(iii3) each such purchaser (if other than a Depository Depositary Participant) to give instructions to its Depository Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Senior Notes purchased through the facilities of the DepositoryDepositary; and
(iv4) each such purchaser (or Depository Depositary Participant thereof) that the Remarketed Debentures Senior Notes will not be delivered until the Remarketing Settlement Date, and, in the case of the Initial Remarketing Date or the Second Remarketing, the Remarketing Settlement Date will be five Business Days or four Business Days, respectively, following the date of such Remarketing and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Senior Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Senior Notes underlying the Applicable Ownership Interests in Debentures Senior Notes that are components of the Corporate Units shall be paid to the Collateral Agent in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement and (ii) with respect to the Separate Debentures, in each caseSenior Notes, shall be applied paid to the Custodial Agent for payment to the holders of such Separate Senior Notes in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) The right of each holder of Remarketed Senior Notes to have such Remarketed Senior Notes remarketed and sold on any Remarketing Date shall be subject to the conditions that (i) the Remarketing Agent conducts (A) an Initial Remarketing, (B) a Second Remarketing in the event of a Failed Remarketing on the Initial Remarketing Date and (C) a Final Remarketing in the event of a Failed Remarketing on the Second Remarketing Date, each pursuant to the terms of this Agreement, (ii) neither a Special Event Redemption nor a Termination Event has occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price based on the Reset Rate, and (iv) such purchaser or purchasers of the Remarketed Senior Notes deliver the purchase price therefor to the Remarketing Agent as and when required.
(i) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesSenior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender tender of Remarketed Debentures Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender tender of the Remarketed Debentures Senior Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • [_______] as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, [ • [_______] hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketed Debentures Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the DebenturesNotes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. For the avoidance of doubt, ; provided that the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as and the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketing, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures Notes at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two three Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures Notes should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If, by 4:00 p.m., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket all of the Remarketed DebenturesNotes, at a price not less than the applicable Remarketing Price pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall advise by telephone (and promptly deliver a notice in writing thereafter to) the Depository, the Purchase Contract Agent, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on the Debentures Notes will not be reset and will continue to be the Coupon Rate set forth in the Supplemental Indenture.
(f) In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:telephone (and promptly deliver a notice in writing thereafter):
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures Notes and the aggregate principal amount of Remarketed Debentures Notes sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures Notes of the Reset Rate and the aggregate principal amount of Remarketed Debentures Notes such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures Notes purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures Notes that it has purchased prior to the second third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The In the case of a Public Remarketing, the Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Final Prospectus in connection with the such Public Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures Notes underlying the Pledged Applicable Ownership Interests in Debentures Notes that are components of the Corporate Units and (ii) with respect to the Separate DebenturesNotes, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed DebenturesNotes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures Notes for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (South Jersey Industries Inc)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] HSBC Securities (USA) Inc. as the exclusive Remarketing Agent and Reset Agent, and, subject to the terms and conditions set forth herein, [ • ] HSBC Securities (USA) Inc. hereby accepts appointment as Remarketing Agentsuch appointment, for the purpose of (i) remarketing the Remarketing Remarketed Debentures Notes on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent and Reset Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior The Remarketing Agent agrees (i) to such date, if use its commercially reasonable best efforts to remarket the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant Remarketed Notes tendered or deemed tendered to the Purchase Contract Remarketing Agent in the Remarketing, (ii) to notify the Company, the Depositary and Pledge Agreementthe Indenture Trustee promptly of the Reset Rate and (iii) to establish the Reset Rate and carry out such other duties as are assigned to the Remarketing Agent and Reset Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures.
(c) On the Remarketing Date, the Remarketing Agent shall use its commercially reasonable best efforts to remarket remarket, at a price equal to 100.25% of the Remarketing Value, the Remarketed Debentures at Notes tendered or deemed tendered for purchase.
(d) If, as a result of the applicable Remarketing Price. For the avoidance of doubtefforts described in Section l(b), the Company shall determine in its sole discretion if and when Remarketing Agent determines, after consultation with the Company, that it will be able to attempt an Optional Remarketingremarket all Remarketed Notes tendered or deemed tendered for purchase at a price of 100.25% of the Remarketing Value prior to 4:00 p.m., as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional RemarketingNew York City time, on any the Remarketing Date, the Remarketing Agent shall notify Agent, after consultation with the Company, shall (i) determine the Collateral Agent and rate of interest (the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof"Reset Rate") that will constitute enable it to remarket all Remarketed Notes tendered or deemed tendered for Remarketing and (ii) commit to purchase, on a third-day settlement basis, and on the Treasury Portfolio, which will be selected by third Business Day following the Remarketing Agent in its sole discretion in accordance with Date (the Purchase Contract and Pledge Agreement. The Company will cause "Remarketing Closing Date"), shall purchase, the Quotation Agent to notify the Remarketing Agent of the Agent-purchased Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. Consideration.
(e) If the Remarketing Agent is also acting as Quotation Agent, cannot remarket the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to Notes on the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable best efforts to attempt to remarket Notes on each of the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days immediately following the Remarketing Date and, if necessary, on each of the Final three Business Days immediately preceding December 15, 2005, and if necessary, on the third Business Day immediately preceding the Stock Purchase Date in accordance with the Remarketing PeriodProcedures (each such remarketing, the "Subsequent Remarketing"), provided that (i) the notice of any Subsequent Remarketing cannot be given until the Failed Remarketing notice has been published in accordance with the Remarketing Procedures in respect of any immediately preceding Failed Remarketing and (ii) the Remarketing Closing Date in respect of any Subsequent Remarketing must fall no later than on the Business Day immediately preceding the Stock Purchase Date.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(ef) If, by 4:00 p.m., New York City time, on the applicable a Remarketing DateDate (including a Remarketing Date of any Subsequent Remarketing), (i) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesNotes tendered or deemed tendered for purchase, at a price not less than the applicable failed Remarketing Price pursuant ("Failed Remarketing") shall be deemed to the terms have occurred, and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall shall, on such date, so advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDepositary, the Purchase Contract Agent, the Collateral Agent Trustee, the Company and the Company. Whether or not there has been a Failed Remarketing will be determined in Collateral Agent.
(g) On the sole reasonable discretion of the Remarketing Agent. In the event of a third Business Day following any Failed Remarketing, the applicable interest rate on Remarketing Agent shall remit (i) to the Debentures will not be reset Custodial Agent the Remarketed Notes comprised of the Separate Notes, and will continue (ii) to be the Coupon Rate set forth in Collateral Agent the Supplemental Indenturebalance of the Remarketed Notes.
(fh) If by 4:00 p.m., New York City time, on the third Business Day immediately preceding the Stock Purchase Date, the Remarketing Agent, in spite of using its commercially reasonable best efforts, fails to remarket all of the Notes tendered or deemed tendered for purchase, the "Last Failed Remarketing" will be deemed to have occurred. In this case, the event of a Successful Remarketing Agent shall so advise by telephone the Depositary, the Purchase Contract Agent Trustee, the Company and the Collateral Agent. On the third Business Day following the Last Failed Remarketing, by the Remarketing Agent shall remit (i) to the Custodial Agent the Remarketed Notes comprised of the Separate Notes and (ii) to the Collateral Agent the balance of the Remarketed Notes.
(i) By approximately 4:30 p.m., New York City time, on the applicable a Remarketing Date, provided that there has not been a Failed Remarketing (including the Last Failed Remarketing), the Remarketing Agent shall advise, advise by telephone:
(i) telephone the DepositoryCompany, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent Depositary and the Company (and promptly deliver a notice in writing to such Persons thereafter) Trustee of the Reset Rate with respect to determined in the Debentures Remarketing and the aggregate principal amount number of Remarketed Debentures Notes sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount of Remarketed Debentures such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(gj) The In accordance with the Depositary's normal procedures, on the Remarketing Closing Date, the transactions described above with respect to each Note tendered for purchase and sold in the Remarketing shall be executed through the Depositary, and the accounts of the respective Depositary participants shall be debited and credited and such Notes delivered by book-entry as necessary to effect purchases and sales of such Notes.
(k) On the Remarketing Closing Date, the tender and settlement procedures set forth in this Section 1, including provisions for payment by purchasers of the Notes in the Remarketing, shall be subject to modification to the extent required by the Depositary or if the Depositary's book-entry system is no longer available for the Notes at the time of the Remarketing, to facilitate the tendering and remarketing of the Notes in certificated form. In addition, the Remarketing Agent may modify the settlement procedures set forth herein in order to facilitate the settlement process.
(l) On the Remarketing Closing Date, the Remarketing Agent shall remit to the Collateral Agent through the Purchase Contract Agent the Agent-purchased Treasury Consideration.
(m) On the Remarketing Closing Date, the Remarketing Agent shall retain as a remarketing fee an amount not exceeding 25 basis points (0.25%) of the total proceeds from a Successful Remarketing the sale of the Remarketed Notes and shall remit (i) with respect the remaining portion of the balance attributable to the Debentures underlying Separate Notes to the Applicable Ownership Interests in Debentures that are components Custodial Agent for distribution to the holders of the Corporate Units Separate Notes that were remarketed and (ii) with respect the remaining portion of the balance to the Separate Debentures, in each case, shall be applied Purchase Contract Agent for distribution to the holders of the Remarketed Notes in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints [ • ] Xxxxxxx, Xxxxx & Co. as the exclusive Remarketing Agent and Reset Agent, andand Xxxxxxx, subject to the terms and conditions set forth herein, [ • ] Sachs & Co. hereby accepts appointment as Remarketing Agentsuch appointment, for the purpose of (i) remarketing the Remarketing Remarketed Debentures on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent and Reset Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless The Remarketing Agent agrees (i) to use its commercially reasonable best efforts to remarket the Remarketed Debentures tendered or deemed tendered to the Remarketing Agent in the Remarketing, (ii) to notify the Company, the Depositary and the Indenture Trustee promptly of the Reset Rate and (iii) to establish the Reset Rate and carry out such other duties as are assigned to the Remarketing Agent and Reset Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures.
(c) On the Remarketing Date, the Remarketing Agent shall use its reasonable best efforts to remarket, at a Termination Event has occurred price equal to 100.5% of the Remarketing Value, the Remarketed Preferred Securities tendered or deemed tendered for purchase.
(d) If, as a result of the efforts described in Section l(b), the Remarketing Agent determines, after consultation with the Company, that it will be able to remarket all Remarketed Debentures tendered or deemed tendered for purchase at a price of 100.5% of the Remarketing Value prior to such date4:00 p.m., if New York City time, on the Company elects Remarketing Date, the Remarketing Agent, after consultation with the Company, shall (i) determine the rate of interest (the “Reset Rate”) that will enable it to conduct an Optional remarket all Remarketed Debentures tendered or deemed tendered for Remarketing during and (ii) commit to purchase, on a third-day settlement basis, and on the Optional third Business Day following the Remarketing Period selected by Date (the Company pursuant to “Remarketing Closing Date”), shall purchase, the Purchase Contract and Pledge AgreementAgent-purchased Treasury Consideration.
(e) If the Remarketing Agent cannot remarket the Debentures on the Remarketing Date, the Remarketing Agent shall use its commercially reasonable best efforts to attempt to remarket Debentures on each of the Remarketed Debentures at two Business Days immediately following the applicable Remarketing Price. For the avoidance of doubtDate and, the Company shall determine in its sole discretion if and when to attempt an Optional Remarketing, as the Company may commence or postpone or cancel an Optional Remarketing in its absolute and sole discretion. In the case of an Optional Remarketingnecessary, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent and the Quotation Agent each of the amount three Business Days immediately preceding November 1, 2004, and issue if necessary, on each of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute three Business Days immediately preceding the Treasury Portfolio, which will be selected by the Remarketing Agent in its sole discretion Stock Purchase Date in accordance with the Purchase Contract and Pledge Agreement. The Company will cause Remarketing Procedures (each such remarketing, the Quotation Agent to notify “Subsequent Remarketing”), provided that (i) the notice of any Subsequent Remarketing cannot be given until the Failed Remarketing notice has been published in accordance with the Remarketing Agent Procedures in respect of any immediately preceding Failed Remarketing and (ii) the Treasury Portfolio Purchase Price Remarketing Closing Date in respect of any Subsequent Remarketing must fall no later than 4:00 p.m. New York City time on such Remarketing the Business Day immediately preceding the Stock Purchase Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent will enable it to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(ef) If, by 4:00 p.m., New York City time, on the applicable a Remarketing DateDate (including a Remarketing Date of any Subsequent Remarketing), (i) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesDebentures tendered or deemed tendered for purchase, at a price not less than the applicable failed Remarketing Price pursuant (“Failed Remarketing”) shall be deemed to the terms have occurred, and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall shall, on such date, so advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDepositary, the Purchase Contract Agent, the Collateral Agent Trustee, the Company and the Company. Whether or not there has been a Failed Remarketing will be determined in Collateral Agent.
(g) On the sole reasonable discretion of the Remarketing Agent. In the event of a third Business Day following any Failed Remarketing, the applicable interest rate on Remarketing Agent shall remit (i) to the Custodial Agent the Remarketed Debentures will not be reset comprised of the Separate Debentures, and will continue (ii) to be the Coupon Rate set forth in Collateral Agent the Supplemental Indenturebalance of the Remarketed Debentures.
(fh) If by 4:00 p.m., New York City time, on the Business Day immediately preceding December 16, 2004, the Remarketing Agent, in spite of using its commercially reasonable best efforts, fails to remarket all of the Debentures tendered or deemed tendered for purchase, the “Last Failed Remarketing” will be deemed to have occurred. In this case, the event of a Successful Remarketing Agent shall so advise by telephone the Depositary, the Purchase Contract Agent Trustee, the Company, the Trust and the Collateral Agent. On the third Business Day following the Last Failed Remarketing, by the Remarketing Agent shall remit (i) to the Custodial Agent the Remarketed Debentures comprised of the Separate Debentures and (ii) to the Collateral Agent the balance of the Remarketed Debentures.
(i) By approximately 4:30 p.m., New York City time, on the applicable a Remarketing Date, provided that there has not been a Failed Remarketing (including the Last Failed Remarketing), the Remarketing Agent shall advise, advise by telephone:
(i) telephone the DepositoryCompany, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent Depositary and the Company (and promptly deliver a notice in writing to such Persons thereafter) Trustee of the Reset Rate with respect to determined in the Debentures Remarketing and the aggregate principal amount number of Remarketed Debentures sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount of Remarketed Debentures such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(gj) The In accordance with the Depositary’s normal procedures, on the Remarketing Closing Date, the transactions described above with respect to each Debenture tendered for purchase and sold in the Remarketing shall be executed through the Depositary, and the accounts of the respective Depositary participants shall be debited and credited and such Debentures delivered by book-entry as necessary to effect purchases and sales of such Debentures.
(k) On the Remarketing Closing Date, the tender and settlement procedures set forth in this Section 1, including provisions for payment by purchasers of the Debentures in the Remarketing, shall be subject to modification to the extent required by the Depositary or if the Depositary’s book-entry system is no longer available for the Debentures at the time of the Remarketing, to facilitate the tendering and remarketing of the Debentures in certificated form. In addition, the Remarketing Agent may modify the settlement procedures set forth herein in order to facilitate the settlement process.
(l) On the Remarketing Closing Date, the Remarketing Agent shall remit to the Collateral Agent through the Purchase Contract Agent the Agent-purchased Treasury Consideration.
(m) On the Remarketing Closing Date, the Remarketing Agent shall retain as a remarketing fee an amount not exceeding 25 basis points (.25%) of the total proceeds from a Successful Remarketing the sale of the Remarketed Debentures and shall remit (i) with respect the remaining portion of the balance attributable to the Separate Debentures underlying to the Applicable Ownership Interests in Custodial Agent for distribution to the holders of the Separate Debentures that are components of the Corporate Units were remarketed and (ii) with respect the remaining portion of the balance to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that Agent for distribution to the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender holders of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation accordance with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate)Purchase Contract Agreement.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company Company, Capital Markets and the Trust (collectively, the "Issuers") hereby appoints [ • ] appoint Lehmxx Xxxthers Inc. as exclusive remarketing agent (the exclusive "Remarketing Agent"), and, subject to the terms and conditions set forth herein, [ • ] Lehmxx Xxxthers Inc. hereby accepts appointment as Remarketing Agent, for the purpose of (i) remarketing the Remarketing Remarketed Debentures Securities on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Debentures, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Termination Event has occurred prior to such date, if the Company elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, the The Remarketing Agent shall agrees (i) to use its commercially reasonable efforts to remarket the Remarketed Debentures at Securities tendered or deemed tendered to the applicable Remarketing Price. For Agent in the avoidance Remarketing, (ii) to notify the Issuers promptly of doubtthe Reset Rate and (iii) to carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Procedures.
(c) On the third Business Day immediately preceding the Purchase Contract Settlement Date (the "Remarketing Date"), the Company Remarketing Agent shall determine in its sole discretion if and when use commercially reasonable efforts to attempt an Optional Remarketingremarket, at a price equal to 100% of the aggregate liquidation or principal amount thereof, the Remarketed Securities tendered or deemed tendered for purchase.
(d) If, as a result of the Company may commence efforts described in Section 1(b), the Remarketing Agent determines that it will be able to remarket all Remarketed Securities tendered or postpone deemed tendered for purchase at a price of 100% of the aggregate stated liquidation or cancel an Optional Remarketing in its absolute and sole discretion. In the case principal amount of an Optional Remarketingsuch Remarketed Securities prior to 4:00 P.M., New York City time, on any the Remarketing Date, the Remarketing Agent shall notify determine the Company, the Collateral Agent and the Quotation Agent of the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury PortfolioReset Rate, which will be selected by the Remarketing Agent in its sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent of the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If the Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Remarketing Agent.
(c) If there is no Successful Optional Remarketing during the Optional Remarketing Period or no Optional Remarketing occurs on any Optional Remarketing Date, if any, and unless a Termination Event has occurred prior to such date, on each Remarketing Date in the Final Remarketing Period, the Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed Debentures at the applicable Remarketing Price. It is understood and agreed that the Remarketing on any Remarketing Date in the Final Remarketing Period will be considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Company has the right to postpone the Final Remarketing in the Company’s sole and absolute discretion on any day prior to the last two Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, or, if the Company elects to remarket the Debentures as floating-rate Debentures as described in Section 2(i)(3), the index rate plus spread ) that the Remarketed Debentures should bear (such fixed or floating rate, the “Reset Rate”) in order for the Remarketed Debentures to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agent determines, in its sole judgment, to be the lowest rate per annum that will enable it to remarket all of the Remarketed Debentures at no less than the applicable Remarketing Price in such Securities tendered or deemed tendered for Remarketing; provided that such Reset Rate shall not exceed the maximum interest rate permitted by applicable law.
(e) If none of the holders of Remarketed Securities elects to have Remarketed Securities remarketed in the Remarketing, the Remarketing Agent shall determine the rate that would have been established had a Remarketing been held on the Remarketing Date, and such rate shall be the Reset Rate.
(f) If, by 4:00 p.m.P.M., New York City time, on the applicable Remarketing Date, (i) the Remarketing Agent is unable to Remarket remarket all of the Remarketed DebenturesSecurities tendered or deemed tendered for purchase, at a price not less than the applicable failed Remarketing Price pursuant ("Failed Remarketing") shall be deemed to the terms have occurred, and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 6 hereof was not satisfied, the Remarketing Agent shall so advise by telephone (and promptly deliver a notice in writing thereafter to) the DepositoryDepositary, the Purchase Contract AgentProperty Trustee (if the Remarketed Securities are the Securities), the Collateral Agent and Indenture Trustee, the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. In the event of a Failed Remarketing, the applicable interest rate on Regular Trustees (if the Debentures will not be reset Remarketed Securities are the Securities) and will continue to be the Coupon Rate set forth in the Supplemental IndentureCapital Markets.
(fg) In the event of a Successful Remarketing, by By approximately 4:30 p.m.P.M., New York City time, on the applicable Remarketing Date, provided that there has not been a Failed Remarketing, the Remarketing Agent shall advise, by telephone:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and the Company (and promptly deliver a notice in writing to such Persons thereafter) of the Reset Rate with respect to the Debentures and the aggregate principal amount of Remarketed Debentures sold in such Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Debentures of the Reset Rate and the aggregate principal amount of Remarketed Debentures such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its Depository Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Debentures purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Debentures will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed Debentures that it has purchased prior to the second Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. The Remarketing Agent shall also, if required by the Securities Act, deliver, in conformity with the requirements of the Securities Act, to each purchaser a Prospectus in connection with the Remarketing.
(g) The proceeds from a Successful Remarketing (i) with respect to the Debentures underlying the Applicable Ownership Interests in Debentures that are components of the Corporate Units and (ii) with respect to the Separate Debentures, in each case, shall be applied in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(h) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Debentures, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon surrender of Remarketed Debentures for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement. Neither the Company nor the Remarketing Agent shall be obligated in any case to provide funds to make payment upon surrender of the Remarketed Debentures for Remarketing.
(i) Notwithstanding anything to the contrary herein, it is understood and agreed that in connection with any Remarketing, the Company may elect, in consultation with the Remarketing Agent to, among other things, remarket the Debentures as fixed-rate notes or floating-rate notes and, in the case of floating-rate notes, provide that the interest rate on the Debentures shall be equal to an index selected by the Company plus a spread determined by the Remarketing Agent, in consultation with the Company, in which case interest on the Debentures may be calculated on the basis of a 365 day year and the actual number of days elapsed (or such other basis as is customarily used for floating-rate notes bearing interest at a rate based on such index rate).by
Appears in 1 contract
Samples: Remarketing Agreement (Nisource Inc)
