Appointment and Obligations of the Remarketing Agents. (a) Unless this Agreement is otherwise terminated in accordance with Section 11 hereof, in accordance with the terms, but subject to the conditions, of this Agreement, the Company hereby appoints Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx, and Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx, acting severally and not jointly, hereby accept such appointment, to use their reasonable best efforts to remarket the Debentures in accordance with the Indenture and this Agreement as the exclusive Remarketing Agents with respect to the Debentures not subject to a duly submitted (and not timely withdrawn) Hold Notice. The Company agrees that a Remarketing Agent shall have the right (with the agreement of the other Remarketing Agent), on prior notice to the Company, to appoint one or more additional remarketing agents so long as any such additional remarketing agents shall be reasonably acceptable to the Company. Upon any such appointment, the parties shall enter into an appropriate amendment to this Agreement to reflect the addition of any such remarketing agent. (b) It is expressly understood and agreed by and between the parties hereto that the Remarketing Agents shall not be obligated to set the Reset Yield on any Debentures, to remarket any Debentures or to perform any of the other duties set forth herein at any time that (i) any of the conditions set forth in clause (a) of Section 8 hereof shall not have been fully and completely met to the satisfaction of the Remarketing Agents, or (ii) any of the events set forth in clause (b) of Section 8 hereof shall have occurred or be continuing. (c) The yield on the Debentures will be reset by the Remarketing Agents on the Reset Yield Determination Date to the yield (the “Reset Yield”) for the period from and including the Remarketing Reset Date to but excluding May 1, 2010 (or, if such day is not a Business Day, the immediately succeeding Business Day) necessary for the proceeds from the remarketing of the Debentures, net of any fee to the Remarketing Agents, to be 100% of the Accreted Principal Amount, as of such Remarketing Reset Date, of the Debentures remarketed; provided that the Reset Yield shall not exceed the maximum rate permitted by law and shall not be less than 0% per annum. (d) The Company confirms that the deadline for delivering a Hold Notice to the Paying Agent is 5:00 p.m., New York City time, on April 16, 2009. (e) Notwithstanding the foregoing, if (i) Holders of less than $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed in connection with the Remarketing Reset Date pursuant to Section 15.03 of the Indenture or (ii) a Failed Remarketing occurs on the Remarketing Reset Date, the Reset Yield shall be the yield necessary, in the judgment of the Remarketing Agents based on bids from at least three independent nationally recognized securities dealers selected by the Remarketing Agents, for the Debentures to trade at a price equal to 100% of the Accreted Principal Amount thereof as of such Remarketing Reset Date. If the Remarketing Agents are not able to obtain bids from at least three independent nationally recognized securities dealers on the Remarketing Reset Date, the Reset Yield shall be 3.55175%. If the Reset Yield is established on the Remarketing Reset Date but a Failed Remarketing occurs after such date, such Reset Yield will continue to apply to the Debentures notwithstanding such Failed Remarketing. (f) By approximately 4:30 p.m., New York City time, on the Reset Yield Determination Date, the Remarketing Agents shall notify the Company, the Trustee, the Paying Agent and the Depositary by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Reset Yield and the Closing Date and the Company only of the Applicable Time or, if applicable, a Failed Remarketing. The Company shall issue a press release stating such Reset Yield and publish such information on its website on the World Wide Web. The Reset Yield, determined as provided in this Section 4, shall be conclusive and binding on the Holders and Beneficial Owners of the Debentures. (g) As early as practicable, and, in any event, by 5:00 p.m., New York City time, on April 16, 2009, the Company shall notify the Remarketing Agents and the Trustee by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Original Principal Amount of Debentures that is not subject to a duly submitted (and not timely withdrawn) Hold Notice. (h) If Holders of at least $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed with respect to the Remarketing Reset Date (a “Required Remarketing”), the Remarketing Agents shall use their reasonable best efforts to conduct such remarketing on any Business Day during the Remarketing Period as selected by the Remarketing Agents in accordance with the terms of this Agreement and the Indenture in consultation with the Company. (i) If the Debentures are successfully remarketed by the Remarketing Agents on the Remarketing Reset Date, the Remarketing Agents shall deduct the fee specified in Annex I to this Agreement from the proceeds of such remarketing and remit the remaining proceeds, which shall be at least 100% of the Accreted Principal Amount of the Debentures remarketed as of the Remarketing Reset Date, to the Holders who elected or are deemed to have elected to participate in such remarketing on the Closing Date. (j) If, by 4:00 p.m., New York City time, on the Remarketing Reset Date with respect to a Required Remarketing, a Required Remarketing is not conducted for any reason or the Remarketing Agents are unable to remarket all Debentures for which an election to remarket has been made or deemed to have been made or if, at any time prior to delivery of and payment for the Debentures on the Closing Date, a condition precedent in this Agreement shall not have been fulfilled, a failed remarketing (“Failed Remarketing”) shall be deemed to have occurred. In the event of a Failed Remarketing, the Company shall issue a press release regarding such Failed Remarketing and stating the aggregate Original Principal Amount of Debentures that the Company will repurchase as required pursuant to Section 15.04(a) of the Indenture and publish such information on its website on the World Wide Web. (k) The Company will request, not later than 20 Business Days prior to April 16, 2009 (the date by which Holders are required to give notice pursuant to Section 15.03(a) of the Indenture), that the Depositary notify its participants of the potential remarketing of the Debentures, the identities of the Remarketing Agents, the procedures a Beneficial Owner must follow to deliver a Hold Notice, the date by which such Hold Notice must be delivered and the right of the Beneficial Owners of Debentures to require the Company to purchase Debentures if there is a Failed Remarketing or upon the other circumstances provided in the Indenture. The Company will also issue a press release and publish such information on its website on the World Wide Web. (l) It is understood and agreed that the Remarketing Agents shall not have any obligation whatsoever to purchase any Debentures, whether in the remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Debentures for remarketing or to otherwise expend or risk their own funds or incur or be exposed to financial liability in the performance of their respective duties under this Agreement. (m) If a Holder of Debentures whose Debentures were sold in the remarketing contemplated by this Agreement does not receive payment for such Debentures (with respect to such Holder, a “Failed Settlement”), such Holder will have the right to require the Company to purchase for cash on the date of the Failed Settlement all or a portion of such Debentures at the Remarketing Purchase Price. Such Holder shall notify the Company as promptly as possible of the occurrence of the Failed Settlement. Upon receipt of confirmation of the Failed Settlement from a Remarketing Agent, the Company shall purchase such Debentures for which an election is made as promptly as possible following the Failed Settlement.
Appears in 2 contracts
Samples: Remarketing Agreement, Remarketing Agreement (Wells Fargo & Co/Mn)
Appointment and Obligations of the Remarketing Agents. (a) Unless this Agreement is otherwise terminated in accordance with Section 11 hereof, in accordance with the terms, but subject to the conditions, of this Agreement, the Company hereby appoints Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx Xxxxxxx, and Xxxxxxx Xxxxx, Xxxxx and Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx, acting severally and not jointly, hereby accept such appointment, to use their reasonable best efforts to remarket the Debentures in accordance with the Indenture and this Agreement as the exclusive Remarketing Agents with respect to the Debentures not subject to a duly submitted (tendered for remarketing and not timely withdrawn) Hold Notice. The Company agrees that a Remarketing Agent shall have the right (with the agreement of the other Remarketing Agent), on prior notice to the Company, to appoint one or more additional remarketing agents so long as any such additional remarketing agents shall be reasonably acceptable to the Company. Upon any such appointment, the parties shall enter into an appropriate amendment to this Agreement to reflect the addition of any such remarketing agent.
(b) It is expressly understood and agreed by and between the parties hereto that the Remarketing Agents shall not be obligated to set the Reset Yield on any Debentures, to remarket any Debentures or to perform any of the other duties set forth herein (i) unless a Remarketing Reset Event shall have occurred or (ii) at any time that (iA) any of the conditions set forth in clause (a) of Section 8 hereof shall not have been fully and completely met to the satisfaction of the Remarketing Agents, or (iiB) any of the events set forth in clause (b) of Section 8 hereof shall have occurred or be is continuing.
(c) The yield on the Debentures will be reset by the Remarketing Agents on the Remarketing Reset Yield Determination Date to the yield (the “Reset Yield”) for the period from and including the Remarketing Reset Date to but excluding May 1, 2010 2009 (or, if such day is not a Business Day, the immediately succeeding Business Day) necessary for the proceeds from the remarketing of the Debentures, net of any fee to the Remarketing Agents, to be 100% of the Accreted Principal Amount, as of such Remarketing Reset Date, of the Debentures remarketed; provided that the Reset Yield shall not exceed the maximum rate permitted by law and shall not be less than 0% per annum.
(d) The Company confirms that the deadline for delivering a Hold Notice to the Paying Agent is 5:00 p.m., New York City time, on April 16, 2009.
(e) Notwithstanding the foregoing, if (i) Holders of less than $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected elect to have their Debentures remarketed in connection with on the Remarketing Reset Date pursuant to Section 15.03 of the Indenture or (ii) a Failed Remarketing occurs on the Remarketing Reset Date, the Reset Yield shall be the yield necessary, in the judgment of the Remarketing Agents based on bids from at least three independent nationally recognized securities dealers selected by the Remarketing Agents, for the Debentures to trade at a price equal to 100% of the Accreted Principal Amount thereof as of such Remarketing Reset Date. If the Remarketing Agents are not able to obtain bids from at least three independent nationally recognized securities dealers on the Remarketing Reset Date, the Reset Yield shall be 3.55175%. If the Reset Yield is established on regular interest rate in effect for the Debentures immediately prior to the Remarketing Reset Date but a Failed Remarketing occurs after such date, such Reset Yield will continue to apply to the Debentures notwithstanding such Failed RemarketingDate.
(fe) By approximately 4:30 p.m., New York City time, on the Remarketing Reset Yield Determination Date, the Remarketing Agents shall notify the Company, the Trustee, the Paying Agent and the Depositary by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Reset Yield and the Closing Date and the Company only of the Applicable Time or, if applicable, a Failed Remarketing. The Company shall issue a press release stating such Reset Yield and publish such information on its website on the World Wide Web. The Reset Yield, determined as provided in this Section 4, shall be conclusive and binding on the Holders and Beneficial Owners of the Debentures.
(gf) On the Remarketing Reset Date, each Holder of Debentures will have the right to elect to have its Debentures remarketed by notice to the Paying Agent on or prior to the Business Day immediately prior to the Remarketing Reset Date of the Original Principal Amount of Debentures such Holder wants to have remarketed if a Remarketing Reset Event occurs (a “Notice of Remarketing”). As early as practicable, and, in any event, by 5:00 5 p.m., New York City time, on April 16, 2009the Business Day prior to the Remarketing Reset Date, the Company shall notify the Remarketing Agents Agent and the Trustee by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Original Principal Amount of Debentures that is not subject to a duly submitted (and Notice of Remarketing that is not timely withdrawn) Hold Notice.
(hg) If on the Remarketing Reset Date a Remarketing Reset Event occurs and Holders of at least $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed with respect to the Remarketing Reset Date (a “Required RemarketingRemarketing Date”), the Remarketing Agents shall use their reasonable best efforts to conduct such remarketing on any Business Day during the Remarketing Period as selected by the Remarketing Agents in accordance with the terms of this Agreement and the Indenture in consultation with the CompanyIndenture.
(ih) If the Debentures are successfully remarketed by the Remarketing Agents on the Remarketing Reset Date, the Remarketing Agents shall deduct the fee specified in Annex I to this Agreement from the proceeds of such remarketing and remit the remaining proceeds, which shall be at least 100% of the Accreted Principal Amount of the Debentures remarketed as of the Remarketing Reset Dateremarketed, to the Holders who elected or are deemed to have elected to participate in such remarketing on the Closing Date.
(ji) If, by 4:00 p.m., New York City time, on the Remarketing Reset Date with respect to a Required Remarketing, a Required Remarketing is not conducted for any reason or Date, the Remarketing Agents are unable to remarket all Debentures for which an election to remarket has been made or deemed to have been made or if, at any time prior to delivery of and payment for the Debentures on the Closing Date, a condition precedent in this Agreement shall not have been fulfilled, a failed remarketing (“Failed Remarketing”) shall be deemed to have occurred. In the event of a Failed Remarketing, the Company shall issue a press release regarding such Failed Remarketing and stating the aggregate Original Principal Amount of Debentures that the Company will repurchase as required pursuant to Section 15.04(a) of the Indenture and publish such information on its website on the World Wide Web.
(kj) The Company will request, not later than 20 Business Days prior to April 16, 2009 (the date by which Holders are required to give notice pursuant to Section 15.03(a) of the Indenture), that the Depositary notify its participants of the potential remarketing of the Debentures, the identities of the Remarketing Agents, the procedures a Beneficial Owner must follow to deliver a Hold Noticeelect to participate in such remarketing, the date by which such Hold Notice election must be delivered made and the right of the Beneficial Owners of Debentures to require the Company to purchase Debentures if there is a Failed Remarketing or upon the other circumstances provided in the IndentureRemarketing. The Company will also issue a press release and publish such information on its website on the World Wide Web.
(lk) It is understood and agreed that the Remarketing Agents shall not have any obligation whatsoever to purchase any Debentures, whether in the remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Debentures for remarketing or to otherwise expend or risk their own funds or incur or be exposed to financial liability in the performance of their respective duties under this Agreement.
(m) If a Holder of Debentures whose Debentures were sold in the remarketing contemplated by this Agreement does not receive payment for such Debentures (with respect to such Holder, a “Failed Settlement”), such Holder will have the right to require the Company to purchase for cash on the date of the Failed Settlement all or a portion of such Debentures at the Remarketing Purchase Price. Such Holder shall notify the Company as promptly as possible of the occurrence of the Failed Settlement. Upon receipt of confirmation of the Failed Settlement from a Remarketing Agent, the Company shall purchase such Debentures for which an election is made as promptly as possible following the Failed Settlement.
Appears in 2 contracts
Samples: Remarketing Agreement, Remarketing Agreement (Wells Fargo & Co/Mn)
Appointment and Obligations of the Remarketing Agents. (a) Unless this Agreement is otherwise terminated in accordance with Section 11 hereofThe Company hereby appoints each of Barclays Capital Inc., in accordance with the termsCitigroup Global Markets Inc., but Xxxxxxx Sachs & Co. LLC, X.X. Xxxxxx Securities LLC, Xxxxxx Xxxxxxx & Co. LLC and Xxxxx Fargo Securities, LLC as a Remarketing Agent, and, subject to the conditionsterms and conditions set forth herein, each of this AgreementBarclays Capital Inc., the Company hereby appoints Citigroup Global Markets Inc., Xxxxxxx Xxxxx & Co. LLC, X.X. Xxxxxx Securities LLC, Xxxxxx Xxxxxxx & Co. LLC and Xxxxxxx XxxxxXxxxx Fargo Securities, and Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx, acting severally and not jointly, LLC hereby accept such appointment, to use their reasonable best efforts to remarket the Debentures in accordance with the Indenture and this Agreement accepts appointment as the exclusive Remarketing Agents with respect to the Debentures not subject to a duly submitted (and not timely withdrawn) Hold Notice. The Company agrees that a Remarketing Agent shall have Agent, for the right purpose of (with i) remarketing the agreement Remarketed Notes on behalf of the other Remarketing Agent)holders thereof, on prior notice to (ii) determining, in consultation with the Company, to appoint one or more additional remarketing agents so long in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indentures, the Reset Rates for the Notes, and (iii) performing such other duties as any such additional remarketing agents shall be reasonably acceptable are assigned to the Company. Upon any such appointment, Remarketing Agents in the parties shall enter into an appropriate amendment to this Agreement to reflect the addition of any such remarketing agentTransaction Documents.
(b) It is expressly understood and agreed by and between the parties hereto that the Remarketing Agents shall not be obligated Unless a Termination Event has occurred prior to set the Reset Yield on any Debentures, to remarket any Debentures or to perform any of the other duties set forth herein at any time that (i) any of the conditions set forth in clause (a) of Section 8 hereof shall not have been fully and completely met to the satisfaction of the Remarketing Agents, or (ii) any of the events set forth in clause (b) of Section 8 hereof shall have occurred or be continuing.
(c) The yield on the Debentures will be reset by the Remarketing Agents on the Reset Yield Determination Date to the yield (the “Reset Yield”) for the period from and including the Remarketing Reset Date to but excluding May 1, 2010 (orsuch date, if such day is not a Business Day, the immediately succeeding Business Day) necessary for Company elects to conduct an Optional Remarketing during the proceeds from the remarketing of the Debentures, net of any fee to the Optional Remarketing Agents, to be 100% of the Accreted Principal Amount, as of such Remarketing Reset Date, of the Debentures remarketed; provided that the Reset Yield shall not exceed the maximum rate permitted by law and shall not be less than 0% per annum.
(d) The Company confirms that the deadline for delivering a Hold Notice to the Paying Agent is 5:00 p.m., New York City time, on April 16, 2009.
(e) Notwithstanding the foregoing, if (i) Holders of less than $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed in connection with the Remarketing Reset Date pursuant to Section 15.03 of the Indenture or (ii) a Failed Remarketing occurs on the Remarketing Reset Date, the Reset Yield shall be the yield necessary, in the judgment of the Remarketing Agents based on bids from at least three independent nationally recognized securities dealers Period selected by the Company pursuant to the Purchase Contract and Pledge Agreement, each Remarketing Agents, for Agent shall use its commercially reasonable efforts to remarket the Debentures to trade Remarketed Notes at a price equal to 100% the applicable Remarketing Price. For the avoidance of the Accreted Principal Amount thereof as of such Remarketing Reset Date. If the Remarketing Agents are not able to obtain bids from at least three independent nationally recognized securities dealers on the Remarketing Reset Datedoubt, the Reset Yield Company shall be 3.55175%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. If In the Reset Yield is established on the Remarketing Reset Date but a Failed Remarketing occurs after such date, such Reset Yield will continue to apply to the Debentures notwithstanding such Failed case of an Optional Remarketing.
(f) By approximately 4:30 p.m., New York City time, on the Reset Yield Determination any Remarketing Date, the Remarketing Agents shall notify the Company, the Trustee, the Paying Collateral Agent and the Depositary by telephone, confirmed in writing (which may include facsimile or other electronic transmission), Quotation Agent of the Reset Yield amount and the Closing Date and the Company only issue of the Applicable Time orU.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, if applicable, a Failed Remarketingwhich will be selected by the Remarketing Agents in their sole reasonable discretion in accordance with the Purchase Contract and Pledge Agreement. The Company shall issue a press release stating such Reset Yield and publish such information on its website on will cause the World Wide Web. The Reset Yield, determined as provided in this Section 4, shall be conclusive and binding on Quotation Agent to notify the Holders and Beneficial Owners Remarketing Agents of the Debentures.
(g) As early as practicable, and, in any event, by 5:00 Treasury Portfolio Purchase Price no later than 4:00 p.m., New York City time, on April 16, 2009such Remarketing Date. If a Remarketing Agent is also acting as Quotation Agent, the Company Quotation Agent shall notify the be entitled to all rights, protections and privileges granted herein to such Remarketing Agents and the Trustee by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Original Principal Amount of Debentures that is not subject to a duly submitted (and not timely withdrawn) Hold NoticeAgent.
(hc) If Holders of 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, each Remarketing Agent shall use its commercially reasonable efforts to remarket the Remarketed 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 $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed with respect equal to the applicable Remarketing Reset Date 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 “Required Remarketing”), the Remarketing Agents shall use their reasonable best efforts to conduct such remarketing on any Business Day during the Remarketing Period as selected by the Remarketing Agents in accordance with the terms of this Agreement and the Indenture determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, that the Remarketed Notes should bear (the “Reset Rates”) in order for the Remarketed Notes to have an aggregate market value equal to at least the applicable Remarketing Price and that in the reasonable discretion of the Remarketing Agents will enable them to remarket all of the Remarketed Notes at no less than the applicable Remarketing Price in such Remarketing; provided that such Reset Rates shall not exceed the maximum interest rate permitted by applicable law.
(i) If the Debentures are successfully remarketed by the Remarketing Agents on the Remarketing Reset Date, the Remarketing Agents shall deduct the fee specified in Annex I to this Agreement from the proceeds of such remarketing and remit the remaining proceeds, which shall be at least 100% of the Accreted Principal Amount of the Debentures remarketed as of the Remarketing Reset Date, to the Holders who elected or are deemed to have elected to participate in such remarketing on the Closing Date.
(je) If, by 4:00 p.m., New York City time, on the applicable Remarketing Reset Date with respect to a Required RemarketingDate, a Required Remarketing is not conducted for any reason or (i) the Remarketing Agents are unable to remarket Remarket all Debentures for which an election of the Remarketed Notes, at a price not less than the applicable Remarketing Price pursuant to remarket 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 of this Agreement was not satisfied, the Remarketing Agents 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 made or deemed to have been made or if, at any time prior to delivery a Failed Remarketing will be determined in the sole reasonable discretion of and payment for the Debentures on the Closing Date, a condition precedent in this Agreement shall not have been fulfilled, a failed remarketing (“Failed Remarketing”) shall be deemed to have occurredRemarketing Agents. In the event of a Failed Remarketing, the Company applicable interest rate on the Notes will not be reset and will continue to be the applicable Securities Rate (as defined in the Supplemental Indentures).
(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 Agents shall issue a press release regarding such Failed Remarketing advise, by telephone or e-mail:
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and stating the aggregate Original Principal Amount of Debentures that the Company will repurchase as required pursuant (and promptly deliver a notice in writing to Section 15.04(asuch Persons thereafter) of the Indenture Reset Rates with respect to the Notes and publish the aggregate principal amount of Remarketed Notes sold in such information on Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Notes of the Reset Rates and the aggregate principal amount of Remarketed Notes such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its website Depository Participant to pay the purchase price on the World Wide WebRemarketing Settlement Date in same day funds against delivery of the Remarketed Notes purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed 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 Agents 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.
(kg) The Company will request, not later than 20 Business Days prior proceeds from a Successful Remarketing (i) with respect to April 16, 2009 (the date by which Holders Notes underlying the Applicable Ownership Interests in Notes that are required to give notice pursuant to Section 15.03(a) components of the Indenture)Corporate Units and (ii) with respect to the Separate Notes, that the Depositary notify its participants in each case, shall be applied in accordance with Section 5.02 of the potential remarketing of the Debentures, the identities of the Remarketing Agents, the procedures a Beneficial Owner must follow to deliver a Hold Notice, the date by which such Hold Notice must be delivered Purchase Contract and the right of the Beneficial Owners of Debentures to require the Company to purchase Debentures if there is a Failed Remarketing or upon the other circumstances provided in the Indenture. The Company will also issue a press release and publish such information on its website on the World Wide WebPledge Agreement.
(lh) It is understood and agreed that the Remarketing Agents shall not have any obligation whatsoever to purchase any DebenturesRemarketed Notes, whether in the remarketing Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender surrender of Debentures Remarketed Notes for remarketing Remarketing or to otherwise expend or risk their own funds or to incur or to be exposed to financial liability in the performance of their respective duties under this Agreement.
(m) If a Holder of Debentures whose Debentures were sold in the remarketing contemplated by this Agreement does not receive payment for such Debentures (with respect to such Holder, a “Failed Settlement”), such Holder will have the right to require . Neither the Company nor the Remarketing Agents shall be obligated in any case to purchase for cash on the date provide funds to make payment upon surrender of the Failed Settlement all or a portion of such Debentures at the Remarketing Purchase Price. Such Holder shall notify the Company as promptly as possible of the occurrence of the Failed Settlement. Upon receipt of confirmation of the Failed Settlement from a Remarketing Agent, the Company shall purchase such Debentures Remarketed Notes for which an election is made as promptly as possible following the Failed SettlementRemarketing.
Appears in 1 contract
Samples: Remarketing Agreement (Southern Co)
Appointment and Obligations of the Remarketing Agents. (a) Unless this Agreement is otherwise terminated in accordance with Section 11 hereof, in accordance with the terms, but subject to the conditions, of this Agreement, the The Company hereby appoints Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx, Citigroup Global Markets Inc. and Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx, acting severally and not jointly, hereby accept such appointment, to use their reasonable best efforts to remarket the Debentures in accordance with the Indenture and this Agreement & Co. Incorporated as the exclusive Remarketing Agents with respect Agents, and, subject to the Debentures not subject to a duly submitted terms and conditions set forth herein, Citigroup Global Markets Inc. and Xxxxxx Xxxxxxx & Co. Incorporated hereby accept appointment as Remarketing Agents, for the purpose of (and not timely withdrawni) Hold Notice. The Company agrees that a Remarketing Agent shall have remarketing the right (with the agreement Remarketed Convertible Notes on behalf of the other Remarketing Agent)holders thereof, on prior notice to (ii) determining, in consultation with the Company, to appoint one or more additional remarketing agents so long in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture No. 1, the Reset Rate for the Convertible Notes, and (iii) performing such other duties as any such additional remarketing agents shall be reasonably acceptable are assigned to the Company. Upon any such appointment, Remarketing Agents in the parties shall enter into an appropriate amendment to this Agreement to reflect the addition of any such remarketing agentTransaction Documents.
(b) It is expressly understood and agreed by and between the parties hereto that the Remarketing Agents shall not be obligated Unless a Termination Event has occurred prior to set the Reset Yield on any Debentures, to remarket any Debentures or to perform any of the other duties set forth herein at any time that (i) any of the conditions set forth in clause (a) of Section 8 hereof shall not have been fully and completely met to the satisfaction of the Remarketing Agents, or (ii) any of the events set forth in clause (b) of Section 8 hereof shall have occurred or be continuing.
(c) The yield on the Debentures will be reset by the Remarketing Agents on the Reset Yield Determination Date to the yield (the “Reset Yield”) for the period from and including the Remarketing Reset Date to but excluding May 1, 2010 (or, if such day is not a Business Day, the immediately succeeding Business Day) necessary for the proceeds from the remarketing of the Debentures, net of any fee to the Remarketing Agents, to be 100% of the Accreted Principal Amount, as of such Remarketing Reset Date, of the Debentures remarketed; provided that the Reset Yield shall not exceed the maximum rate permitted by law and shall not be less than 0% per annum.
(d) The Company confirms that the deadline for delivering a Hold Notice to the Paying Agent is 5:00 p.m., New York City time, on April 16, 2009.
(e) Notwithstanding the foregoing, if (i) Holders of less than $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed in connection with the Remarketing Reset Date pursuant to Section 15.03 of the Indenture or (ii) a Failed Remarketing occurs on the Remarketing Reset Date, the Reset Yield shall be the yield necessary, in the judgment of the Remarketing Agents based on bids from at least three independent nationally recognized securities dealers selected by the Remarketing Agents, for the Debentures to trade at a price equal to 100% of the Accreted Principal Amount thereof as of such Remarketing Reset Date. If the Remarketing Agents are not able to obtain bids from at least three independent nationally recognized securities dealers on the Remarketing Reset Date, the Reset Yield shall be 3.55175%. If the Reset Yield is established on the Remarketing Reset Date but a Failed Remarketing occurs after such date, such Reset Yield will continue to apply to the Debentures notwithstanding such Failed Remarketing.
(f) By approximately 4:30 p.m., New York City time, on the Reset Yield Determination Date, the Remarketing Agents shall notify the Company, the Trustee, the Paying Agent and the Depositary by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Reset Yield and the Closing Date and the Company only of the Applicable Time or, if applicable, a Failed Remarketing. The Company shall issue a press release stating such Reset Yield and publish such information on its website on the World Wide Web. The Reset Yield, determined as provided in this Section 4, shall be conclusive and binding on the Holders and Beneficial Owners of the Debentures.
(g) As early as practicable, and, in any event, by 5:00 p.m., New York City time, on April 16, 2009, the Company shall notify the Remarketing Agents and the Trustee by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Original Principal Amount of Debentures that is not subject to a duly submitted (and not timely withdrawn) Hold Notice.
(h) If Holders of at least $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed with respect to the Remarketing Reset Date (a “Required Remarketing”), the Remarketing Agents shall use their reasonable best efforts to conduct remarket the Remarketed Convertible Notes at the Remarketing Price on May 10, 2010 and, unless a Successful Remarketing has occurred on such remarketing date, on May 11, 2010 (each, a “Remarketing Date”). It is understood and agreed that the Remarketing on any Business Day during Remarketing Date will be considered successful and no further attempts will be made if the resulting proceeds are at least equal to the Remarketing Period as selected by Price.
(c) In connection with each Remarketing, the Remarketing Agents in accordance with the terms of this Agreement and the Indenture shall determine, in consultation with the Company, an annual rate of interest on the Convertible Notes equal to 3-month LIBOR, reset quarterly on each LIBOR Reset Date beginning on the Remarketing Settlement Date, plus or minus a spread, rounded to the nearest one-thousandth (0.001) of one percent per annum, that the Convertible Notes should bear (the “Reset Rate”) in order for the Remarketed Convertible Notes to have an aggregate market value equal to at least the Remarketing Price and that in the sole reasonable discretion of the Remarketing Agents will enable them to remarket all of the Remarketed Convertible Notes at no less than the Remarketing Price in such Remarketing. The Reset Rate may be equal to or higher than 3-month LIBOR minus 3.500%, but may not be lower than 3-month LIBOR minus 3.500%. However, in no event shall the Reset Rate exceed the maximum rate permitted by applicable law or be less than 0%.
(i) If the Debentures are successfully remarketed by the Remarketing Agents on the Remarketing Reset Date, the Remarketing Agents shall deduct the fee specified in Annex I to this Agreement from the proceeds of such remarketing and remit the remaining proceeds, which shall be at least 100% of the Accreted Principal Amount of the Debentures remarketed as of the Remarketing Reset Date, to the Holders who elected or are deemed to have elected to participate in such remarketing on the Closing Date.
(jd) If, by 4:00 p.m., New York City time, on the second Remarketing Reset Date with respect to a Required RemarketingDate, a Required Remarketing is not conducted for any reason or (1) the Remarketing Agents are unable to remarket all Debentures for which an election of the Remarketed Convertible Notes, other than to remarket has been made or deemed to have been made or ifthe Company, at any time prior a price equal to delivery or greater than the Remarketing Price pursuant to the terms and conditions hereof or (2) the Remarketing did not occur on such Remarketing Date because one of and payment for the Debentures on the Closing Dateconditions set forth in Section 6 hereof was not satisfied, a condition precedent in this Agreement shall not have been fulfilled, a failed remarketing (“Failed Remarketing”) Remarketing shall be deemed to have occurred, and the Remarketing Agents shall advise by telephone (promptly confirmed in writing) the Depositary, 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 Agents. In the event of a Failed Remarketing, the Company shall issue a press release regarding such Failed Remarketing and stating the aggregate Original Principal Amount of Debentures that the Company will repurchase as required pursuant to Section 15.04(a) of the Indenture and publish such information on its website applicable interest rate on the World Wide WebConvertible Notes will not be reset, and will continue to be the Initial Interest Rate set forth in the Supplemental Indenture No. 1.
(ke) The In the event of a Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agents shall advise, by telephone (promptly confirmed in writing in the case of clause (1)):
(1) the Depositary, the Purchase Contract Agent, the Trustee and the Company of the Reset Rate determined by the Remarketing Agents in such Remarketing and the principal amount of Remarketed Convertible Notes sold in such Remarketing;
(2) each purchaser (or the Depositary Participant thereof) of Remarketed Convertible Notes of the Reset Rate and the principal amount of Remarketed Convertible Notes such purchaser is to purchase;
(3) each such purchaser (if other than a Depositary Participant) to give instructions to its Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Convertible Notes purchased through the facilities of the Depositary; and
(4) each such purchaser (or Depositary Participant thereof) that the Remarketed Convertible Notes will requestnot be delivered until the Remarketing Settlement Date, not later than 20 Business Days and that if such purchaser wishes to trade the Remarketed Convertible Notes that it has purchased prior to April 16, 2009 (the date by which Holders are required to give notice pursuant to Section 15.03(a) of the Indenture), that the Depositary notify its participants of the potential remarketing of the Debentures, the identities of third Business Day preceding the Remarketing AgentsSettlement Date, such purchaser will have to specify an alternative settlement cycle at the procedures a Beneficial Owner must follow time of any such trade to deliver a Hold Notice, the date by which such Hold Notice must be delivered and the right of the Beneficial Owners of Debentures to require the Company to purchase Debentures if there is a Failed Remarketing or upon the other circumstances provided in the Indenture. The Company will also issue a press release and publish such information on its website on the World Wide Webprevent failed settlement.
(lf) The proceeds from a Successful Remarketing (i) with respect to the Convertible 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 Convertible Notes, shall be paid to the Custodial Agent for payment to the holders of such Separate Convertible Notes in accordance with Section 5.02 of the Purchase Contract and Pledge Agreement.
(g) The right of each holder of Remarketed Convertible Notes to have such Remarketed Convertible Notes remarketed and sold on any Remarketing Date shall be subject to the conditions that (i) a Termination Event has not occurred prior to such Remarketing Date, (ii) the Remarketing Agents are able to find a purchaser or purchasers for Remarketed Convertible Notes at the Remarketing Price based on the Reset Rate, and (iii) such purchaser or purchasers on the Remarketing Settlement Date of the Remarketed Convertible Notes deliver the purchase price therefor to the Remarketing Agents as and when required.
(h) It is understood and agreed that the Remarketing Agents shall not have any obligation whatsoever to purchase any DebenturesRemarketed Convertible Notes, whether in the remarketing Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Debentures Remarketed Convertible Notes for remarketing Remarketing or to otherwise expend or risk their its own funds or incur or to be exposed to financial liability in the performance of their respective its duties under this Agreement.
(m) If a Holder of Debentures whose Debentures were sold in the remarketing contemplated by this Agreement does not receive payment for such Debentures (with respect to such Holder, a “Failed Settlement”), such Holder will have the right to require . Neither the Company to purchase for cash on nor the date Remarketing Agents, nor any agent of the Failed Settlement all Company or a portion of such Debentures at the Remarketing Purchase Price. Such Holder Agents, shall notify the Company as promptly as possible be obligated in any case to provide funds to make payment upon tender of the occurrence of the Failed Settlement. Upon receipt of confirmation of the Failed Settlement from a Remarketing Agent, the Company shall purchase such Debentures Remarketed Convertible Notes for which an election is made as promptly as possible following the Failed SettlementRemarketing.
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Stanley Works)
Appointment and Obligations of the Remarketing Agents. (a) Unless this Agreement is otherwise terminated in accordance with Section 11 hereof, in accordance with the terms, but subject to the conditions, of this Agreement, the The Company hereby appoints Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx, and Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx, acting severally and not jointly, hereby accept such appointment, to use their reasonable best efforts to remarket the Debentures several remarketing agents named in accordance with the Indenture and this Agreement Schedule I hereto as the exclusive Remarketing Agents with respect Agents, and Citigroup Global Markets Inc. as Representative of the Remarketing Agents. Each Remarketing Agent appoints the Representative to act on its behalf under this Agreement. The Representative, on behalf of the Remarketing Agents, and subject to the Debentures not subject to a duly submitted terms and conditions set forth herein, hereby accepts such appointment for the purpose of (and not timely withdrawni) Hold Notice. The Company agrees that a Remarketing Agent shall have remarketing the right (with the agreement Remarketed Senior Notes on behalf of the other Remarketing Agent)holders thereof, on prior notice to (ii) determining, in consultation with the Company, to appoint one or more additional remarketing agents so long in the manner provided for herein and in the Warrant Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as any such additional remarketing agents shall be reasonably acceptable are assigned to the Company. Upon any such appointment, Remarketing Agents in the parties shall enter into an appropriate amendment to this Agreement to reflect the addition of any such remarketing agentTransaction Documents.
(b) It is expressly understood and agreed by and between the parties hereto that the Remarketing Agents shall not be obligated Unless a Special Event Redemption has occurred prior to set the Reset Yield on any Debenturessuch date, to remarket any Debentures or to perform any of the other duties set forth herein at any time that (i) any of the conditions set forth in clause (a) of Section 8 hereof shall not have been fully and completely met to the satisfaction of the Remarketing Agents, or (ii) any of the events set forth in clause (b) of Section 8 hereof shall have occurred or be continuing.
(c) The yield on the Debentures will be reset by the Remarketing Agents on the Reset Yield Determination Date to the yield third Business Day immediately preceding August 16, 2005 (the “Reset Yield”) for the period from and including the Initial Remarketing Reset Date to but excluding May 1, 2010 (or, if such day is not a Business Day, the immediately succeeding Business Day) necessary for the proceeds from the remarketing of the Debentures, net of any fee to the Remarketing Agents, to be 100% of the Accreted Principal Amount, as of such Remarketing Reset Date, of the Debentures remarketed; provided that the Reset Yield shall not exceed the maximum rate permitted by law and shall not be less than 0% per annum.
(d) The Company confirms that the deadline for delivering a Hold Notice to the Paying Agent is 5:00 p.m., New York City time, on April 16, 2009.
(e) Notwithstanding the foregoing, if (i) Holders of less than $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed in connection with the Remarketing Reset Date pursuant to Section 15.03 of the Indenture or (ii) a Failed Remarketing occurs on the Remarketing Reset Date, the Reset Yield shall be the yield necessary, in the judgment of the Remarketing Agents based on bids from at least three independent nationally recognized securities dealers selected by the Remarketing Agents, for the Debentures to trade at a price equal to 100% of the Accreted Principal Amount thereof as of such Remarketing Reset Date. If the Remarketing Agents are not able to obtain bids from at least three independent nationally recognized securities dealers on the Remarketing Reset Date, the Reset Yield shall be 3.55175%. If the Reset Yield is established on the Remarketing Reset Date but a Failed Remarketing occurs after such date, such Reset Yield will continue to apply to the Debentures notwithstanding such Failed Remarketing.
(f) By approximately 4:30 p.m., New York City time, on the Reset Yield Determination Date, the Remarketing Agents shall notify the Company, the Trustee, the Paying Agent and the Depositary by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Reset Yield and the Closing Date and the Company only of the Applicable Time or, if applicable, a Failed Remarketing. The Company shall issue a press release stating such Reset Yield and publish such information on its website on the World Wide Web. The Reset Yield, determined as provided in this Section 4, shall be conclusive and binding on the Holders and Beneficial Owners of the Debentures.
(g) As early as practicable, and, in any event, by 5:00 p.m., New York City time, on April 16, 2009, the Company shall notify the Remarketing Agents and the Trustee by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Original Principal Amount of Debentures that is not subject to a duly submitted (and not timely withdrawn) Hold Notice.
(h) If Holders of at least $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed with respect to the Remarketing Reset Date (a “Required Remarketing”), the Remarketing Agents shall use their reasonable best efforts to conduct such remarketing remarket (“Initial Remarketing”) the Remarketed Senior Notes, at an aggregate price (the “Remarketing Price”), based on any Business Day during the Remarketing Period as selected by Reset Rate, equal to approximately (but not less than) 100.50% of the Remarketing Agents in accordance with sum of the terms of this Agreement Treasury Portfolio Purchase Price and the Indenture in consultation with the CompanySeparate Senior Notes Purchase Price.
(ic) If In the Debentures are successfully remarketed by the case of a Failed Initial Remarketing Agents and unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding September 16, 2005 (the “Second Remarketing Reset Date”), the Remarketing Agents shall deduct use their reasonable efforts to remarket (the fee specified “Second Remarketing”) the Remarketed Senior Notes at the Remarketing Price. In the case of a Failed Second Remarketing and unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding October 16, 2005 (the “Third Remarketing Date”), the Remarketing Agents shall use their reasonable efforts to remarket (the “Third Remarketing”) the Remarketed Senior Notes at the Remarketing Price. In the case of a Failed Third Remarketing and unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding the Warrant Settlement Date (the “Final Remarketing Date”), the Remarketing Agents shall use their reasonable efforts to remarket (the “Final Remarketing”) the Remarketed Senior Notes at an aggregate price (the “Final Remarketing Price”), based on the Reset Rate, equal to approximately 100.50% (or, if the Remarketing Agents are unable to remarket the Remarketed Senior Notes at such price, at a price below 100.50%, but in Annex I to this Agreement from no event less than 100%, net of the Remarketing Fee) of the aggregate principal amount of the Remarketed Senior Notes being remarketed in such Final Remarketing. It is understood and agreed that the Remarketing on any Remarketing Date, other than the Final Remarketing Date, will be considered successful and no further attempts will be made if the resulting proceeds (net of such remarketing the Remarketing Fee) are at least 100.25% of the sum of the Treasury Portfolio Purchase Price and remit the remaining proceeds, which shall Separate Senior Notes Purchase Price. It is further understood and agreed that the Final Remarketing will be considered successful if the resulting proceeds (net of the Remarketing Fee) are at least 100% of the Accreted Principal Amount aggregate principal amount of the Debentures remarketed as of the Remarketing Reset Date, to the Holders who elected or are deemed to have elected to participate in such remarketing on the Closing DateRemarketed Senior Notes.
(jd) In connection with each Remarketing, the Representative shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, that the Senior Notes should bear (the “Reset Rate”) in order for the Remarketed Senior Notes to have an aggregate market value equal to the Remarketing Price or the Final Remarketing Price, as the case may be, and that in the sole reasonable discretion of the Representative will enable the Remarketing Agents to remarket all of the Remarketed Senior Notes at the Remarketing Price or Final Remarketing Price, as the case may be, in such Remarketing, provided that such rate shall not exceed the maximum interest rate permitted by law.
(e) In the event of a Failed Remarketing or if no Senior Notes are included in Corporate Units, and if none of the holders of the Separate Senior Notes elect to have Senior Notes be remarketed in such Remarketing, the applicable interest rate on the Senior Notes will not be reset and will continue to be the Coupon Rate set forth in the Indenture, as supplemented from time to time.
(f) If, by 4:00 p.m., p.m. (New York City time, ) on the applicable Remarketing Reset Date with respect to a Required RemarketingDate, a Required Remarketing is not conducted for any reason or the Remarketing Agents are unable to remarket all Debentures for which an election of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to remarket has been made or deemed to have been made or if, at any time prior to delivery of the terms and payment for the Debentures on the Closing Dateconditions hereof, a condition precedent in this Agreement shall not have been fulfilled, a failed remarketing (“Failed Remarketing”) Remarketing shall be deemed to have occurred, and the Representative shall advise, by telephone the Depositary, the Warrant Agent and the Company, and return the Remarketed Senior Notes to the Collateral Agent or the Custodial Agent, as the case may be. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Representative.
(g) In the event of a Failed Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Representative shall advise, by telephone:
(1) the Depositary, the Warrant Agent and the Company shall issue a press release regarding of the Reset Rate determined by the Representative in such Failed Remarketing and stating the aggregate Original Principal Amount principal amount of Debentures that Remarketed Senior Notes sold in such Remarketing;
(2) each purchaser (or the Company will repurchase as required pursuant to Section 15.04(aDepositary Participant thereof) of Remarketed Senior Notes of the Indenture Reset Rate and publish the aggregate principal amount of Remarketed Senior Notes such information on purchaser is to purchase; and
(3) each such purchaser to give instructions to its website Depositary Participant to pay the purchase price on the World Wide Webthird business day immediately following the date of such Successful Remarketing in same day funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary. The Remarketing Agents shall also, if required by the Securities Act or the rules and regulations promulgated thereunder, deliver to each purchaser a Prospectus in connection with the Remarketing.
(kh) The Company will requestAfter deducting any fees specified in Section 3 below, not later than 20 Business Days prior the proceeds from a Successful Remarketing (i) with respect to April 16, 2009 (the date by which Holders Senior Notes that are required to give notice pursuant to Section 15.03(a) components of the Indenture)Corporate Units, that shall be paid to the Depositary notify its participants Collateral Agent in accordance with Sections 5.07 and 7.03 of the potential remarketing Pledge Agreement, as the case may be, and Section 5.02 of the DebenturesWarrant Agreement and (ii) with respect to the Separate Senior Notes, shall be paid to the identities Custodial Agent for payment to the holders of such Separate Senior Notes in accordance with Section 5.02 of the Remarketing Agents, the procedures a Beneficial Owner must follow to deliver a Hold Notice, the date by which such Hold Notice must be delivered Warrant Agreement and the right Section 7.03 of the Beneficial Owners of Debentures to require the Company to purchase Debentures if there is a Failed Remarketing or upon the other circumstances provided in the Indenture. The Company will also issue a press release and publish such information on its website on the World Wide WebPledge Agreement.
(li) The right of each holder of Separate Senior Notes or Corporate Units to have Remarketed Senior Notes remarketed and sold on any Remarketing Date shall be subject to the conditions that (i) the Remarketing Agents conduct an (A) Initial Remarketing, (B) a Second Remarketing in the event of a Failed Initial Remarketing, (C) a Third Remarketing in the event of a Failed Second Remarketing and (D) a Final Remarketing in the event of a Failed Third Remarketing, each pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agents are able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, based on the Reset Rate, and (iv) such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agents as and when required.
(j) It is understood and agreed that the Remarketing Agents shall not have any obligation whatsoever to purchase any DebenturesRemarketed Senior Notes, whether in the remarketing Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Debentures Remarketed Senior Notes for remarketing Remarketing or to otherwise expend or risk their own funds or incur or to be exposed to financial liability in the performance of their respective duties under this Agreement.
(m) If a Holder , and without limitation of Debentures whose Debentures were sold in the remarketing contemplated by this Agreement does foregoing, the Remarketing Agents shall not receive payment for such Debentures (with respect to such Holder, a “Failed Settlement”), such Holder will have be deemed underwriters of the right to require Remarketed Senior Notes. Neither the Company nor the Remarketing Agents shall be obligated in any case to purchase for cash on the date provide funds to make payment upon tender of the Failed Settlement all or a portion of such Debentures at the Remarketing Purchase Price. Such Holder shall notify the Company as promptly as possible of the occurrence of the Failed Settlement. Upon receipt of confirmation of the Failed Settlement from a Remarketing Agent, the Company shall purchase such Debentures Remarketed Senior Notes for which an election is made as promptly as possible following the Failed SettlementRemarketing.
Appears in 1 contract
Samples: Remarketing Agreement (Chubb Corp)
Appointment and Obligations of the Remarketing Agents. (a) Unless this Agreement The Company hereby appoints, on a non-exclusive basis, each Remarketing Agent, and each Remarketing Agent hereby accepts such appointment as to each Note for each remarketing for which it is otherwise terminated in accordance with Section 11 hereof, designated and has accepted in accordance with the termsfollowing sentence, but as the remarketing agent with respect to the Notes for the purpose of (i) setting the interest rate or rates and the Spread (if any) and/or the Spread Multiplier (if any) for such Notes, (ii) remarketing such Notes from time to time on behalf of the Beneficial Owners thereof and (iii) accepting such tendered Notes for remarketing and receiving payment, or using reasonable efforts to cause the Trustee to receive payment, of the purchase price for such Notes subject to remarketing and paying Beneficial Owners on whose behalf such Notes were remarketed. In connection with the conditions, of this Agreementremarketing on each Interest Rate Adjustment Date for each Note, the Company hereby appoints Xxxxxx Xxxxxxx shall designate the Remarketing Agent therefor by notice (confirmed in writing) to such Remarketing Agent; which designation shall become effective only upon acceptance thereof (confirmed in writing) by the applicable Remarketing Agent. Unless otherwise agreed by the Company and Xxxxxxx Xxxxxthe applicable Remarketing Agent(s) in writing, notice of designation shall be made and Xxxxxx Xxxxxxx accepted not less than eight Business Days prior to (x) the applicable Interest Rate Adjustment Date, in the case of a Note being remarketed into a Short Term Rate Period, or (y) the third Business Day preceding the applicable Interest Rate Adjustment Date, in the case of a Note being remarketed into a Long Term Rate Period. Subject to the foregoing and Xxxxxxx Xxxxxto Section 6 hereof, acting severally and not jointly, hereby accept such appointment, the Company reserves the right to use their reasonable best efforts appoint or replace the Remarketing Agent with respect to remarket the Debentures any issue of Notes at any time.
(b) As to each Note for which it has been designated as Remarketing Agent in accordance with the Indenture preceding Section 4(a), each Remarketing Agent agrees to (i) use its reasonable efforts to set the interest rate for such Note and this Agreement as the exclusive Spread (if any) and/or the Spread Multiplier (if any) in the Interest Rate Mode, and on the other terms, selected by the Company, which rate shall be the lowest rate necessary in the judgment of such Remarketing Agents Agent to remarket such Note on such date of determination at a price equal to 100% of the principal amount thereof, (ii) notify the Company and the Trustee promptly of such interest rate and the Spread (if any) and the Spread Multiplier (if any) for such Note and the other information specified in clause (e) below with respect to the Debentures not next Interest Rate Period for such Note, (iii) use its reasonable efforts to remarket each Note tendered to such Remarketing Agent in remarketings held from time to time and (iv) accept tendered Notes for remarketing and receive payment, or use its reasonable efforts to cause the Trustee to receive payment, of the purchase price for Notes subject to a duly submitted (remarketing and not timely withdrawn) Hold Notice. The Company agrees that a Remarketing Agent shall have the right (with the agreement of the other Remarketing Agent), pay or cause to be paid Beneficial Owners on prior notice to the Company, to appoint one or more additional remarketing agents so long as any whose behalf such additional remarketing agents shall be reasonably acceptable to the Company. Upon any such appointment, the parties shall enter into an appropriate amendment to this Agreement to reflect the addition of any such remarketing agentNotes were remarketed.
(bc) It is expressly understood and agreed by and between the parties hereto that the no Remarketing Agents Agent shall not be obligated to set the Reset Yield interest rate or the Spread or Spread Multiplier on any Debentures, Notes or to remarket any Debentures Notes or to perform any of the other duties set forth herein at any time that (i) any of the conditions set forth in clause (a) or (b) of Section 8 hereof shall not have been fully and completely met to the satisfaction of the Remarketing Agents, Agent or (ii) at any time any of the events set forth in clause (bc) of Section 8 hereof shall have occurred or be continuing.
(c) The yield on the Debentures will be reset by the Remarketing Agents on the Reset Yield Determination Date to the yield (the “Reset Yield”) for the period from and including the Remarketing Reset Date to but excluding May 1, 2010 (or, if such day is not a Business Day, the immediately succeeding Business Day) necessary for the proceeds from the remarketing of the Debentures, net of any fee to the Remarketing Agents, to be 100% of the Accreted Principal Amount, as of such Remarketing Reset Date, of the Debentures remarketed; provided that the Reset Yield shall not exceed the maximum rate permitted by law and shall not be less than 0% per annumoccurred.
(d) The Company confirms In connection with any Note that is being remarketed into a Short Term Rate Period on the deadline next Interest Rate Adjustment Date for delivering a Hold Notice to the Paying Agent is 5:00 such Remarketed Note, by 12:00 p.m., New York City time, on April 16, 2009.
(e) Notwithstanding the foregoing, if (i) Holders of less than $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed in connection with the Remarketing Reset Date pursuant to Section 15.03 of the Indenture or (ii) a Failed Remarketing occurs on the Remarketing Reset such Interest Rate Adjustment Date, the Reset Yield shall be applicable Remarketing Agent will determine the yield necessary, in interest rate for such Note to the judgment nearest one thousandth (0.001) of the Remarketing Agents based on bids from at least three independent nationally recognized securities dealers selected by the Remarketing Agents, one percent per annum for the Debentures to trade at Interest Rate Period in which such Interest Rate Adjustment Date falls. In connection with any Note that is being remarketed into a price equal to 100% of the Accreted Principal Amount thereof as of such Remarketing Reset Date. If the Remarketing Agents are not able to obtain bids from at least three independent nationally recognized securities dealers Long Term Rate Period on the Remarketing Reset Date, the Reset Yield shall be 3.55175%. If the Reset Yield is established on the Remarketing Reset next Interest Rate Adjustment Date but a Failed Remarketing occurs after for such date, such Reset Yield will continue to apply to the Debentures notwithstanding such Failed Remarketing.
(f) By approximately 4:30 p.m., New York City time, on the Reset Yield Determination Date, the Remarketing Agents shall notify the Company, the Trustee, the Paying Agent and the Depositary by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Reset Yield and the Closing Date and the Company only of the Applicable Time or, if applicable, a Failed Remarketing. The Company shall issue a press release stating such Reset Yield and publish such information on its website on the World Wide Web. The Reset Yield, determined as provided in this Section 4, shall be conclusive and binding on the Holders and Beneficial Owners of the Debentures.
(g) As early as practicable, and, in any event, by 5:00 p.m., New York City time, on April 16, 2009, the Company shall notify the Remarketing Agents and the Trustee by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Original Principal Amount of Debentures that is not subject to a duly submitted (and not timely withdrawn) Hold Notice.
(h) If Holders of at least $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed with respect to the Remarketing Reset Date (a “Required Remarketing”), the Remarketing Agents shall use their reasonable best efforts to conduct such remarketing on any Business Day during the Remarketing Period as selected by the Remarketing Agents in accordance with the terms of this Agreement and the Indenture in consultation with the Company.
(i) If the Debentures are successfully remarketed by the Remarketing Agents on the Remarketing Reset Date, the Remarketing Agents shall deduct the fee specified in Annex I to this Agreement from the proceeds of such remarketing and remit the remaining proceeds, which shall be at least 100% of the Accreted Principal Amount of the Debentures remarketed as of the Remarketing Reset Date, to the Holders who elected or are deemed to have elected to participate in such remarketing on the Closing Date.
(j) IfNote, by 4:00 p.m., New York City time, on the third Business Day preceding such Interest Rate Adjustment Date, the applicable Remarketing Reset Date with respect Agent will determine the interest rate for such Note to the nearest one thousandth (0.001) of one percent per annum for the next Interest Rate Period, in the case of a Required Remarketingfixed interest rate, and the Spread, if any, or the Spread Multiplier, if any, in the case of a Required Remarketing is not conducted floating interest rate; provided that, if for any reason the Remarketing Agent is unable to determine such interest rate by such time, the next Interest Rate Period for such Note shall be a Weekly Rate Period or such other Short Term Rate Period as the Company may determine by 9:30 a.m., New York City time, on such Interest Rate Adjustment Date. In determining the applicable interest rate for any Notes and other terms, the applicable Remarketing Agent will, after taking into account market conditions as reflected in the prevailing yields on fixed and variable rate taxable debt securities, (i) consider the principal amount of the Notes tendered or to be tendered on the applicable Interest Rate Adjustment Date and the principal amount of such Notes prospective purchasers are or may be willing to purchase and (ii) contact, by telephone or otherwise, prospective purchasers and ascertain the interest rates or, if applicable, the Spread and/or Spread Multiplier therefor at which they would be willing to hold or purchase such Notes.
(e) By 12:30 p.m., New York City time, on the Interest Rate Adjustment Date for any Note, the applicable Remarketing Agent will notify the Company and the Trustee in writing (including facsimile or appropriate electronic media) of (i) the interest rate or, in the case of a floating interest rate, the initial interest rate and the Initial Interest Reset Date, the Spread and the Spread Multiplier, and the next Interest Rate Adjustment Date applicable to such Note, (ii) the Interest Payment Dates (in the case of Notes being remarketed in the Long Term Rate Mode), (iii) the aggregate principal amount of all tendered Notes for which such Remarketing Agent is responsible hereunder on such date, (iv) the aggregate principal amount of tendered Notes that such Remarketing Agent was able to remarket, at a price equal to 100% of the principal amount thereof, and (v) such other information as the Trustee may require for settlement purposes. The Trustee has agreed to transmit to the Depository such information as the Depository may require for settlement purposes in accordance with the Depository's procedures as in effect from time to time.
(f) By telephone or in writing (including facsimile) not later than approximately 1:00 p.m., New York City time, on such Interest Rate Adjustment Date, the applicable Remarketing Agent will advise each purchaser of Notes remarketed on such date (or the DTC Participant of each such purchaser who it is expected in turn will advise such purchaser) of the principal amount of Notes that such purchaser is to purchase.
(g) Each Remarketing Agent will use its reasonable efforts to facilitate payment by the applicable purchasers to the Trustee for payment to the DTC Participant of each tendering Beneficial Owner of Notes subject to a remarketing, by book entry through the Depository by the close of business on the Interest Rate Adjustment Date against delivery through the Depository of such Beneficial Owner's tendered Notes, of the purchase price for such tendered Notes that have been sold in the remarketing. The Trustee has agreed to make such payment to the Depository for payment to the DTC Participant subject to receipt of payment from the purchaser, and, if any such Notes were subject to purchase as provided in clause (h) of this Section 4, to pay to the Depository for payment to the DTC Participant of each tendering Beneficial Owner thereof, subject to receipt of payment from the Company as provided in clause (h), the purchase price of such Notes plus accrued interest, if any, to such date.
(h) By 12:15 p.m., New York City time, on any Interest Rate Adjustment Date, the applicable Remarketing Agent shall notify the Company and the Trustee, in writing (including facsimile), of the principal amount of Notes that such Remarketing Agent was unable to remarket at a price equal to 100% of the principal amount thereof on such date. Such notice will constitute a demand on the Company to purchase such unremarketed Notes at a price equal to the outstanding principal amount thereof. The Company thereupon will be obligated under the terms of the Notes to purchase such unremarketed Notes. The Company shall deposit same-day funds with the Trustee by 3:00 p.m., New York City time, on such Interest Rate Adjustment Date, in an amount equal to the principal amount of such unremarketed Notes plus accrued interest thereon. Notwithstanding any other provision of this Remarketing Agreement to the contrary, the Trustee and the Remarketing Agents are unable to remarket all Debentures shall not utilize any funds advanced by the Company for the purchase of unremarketed Notes for which an election to remarket has been made or deemed to have been made or if, at any time prior to delivery of and payment for the Debentures on the Closing Date, a condition precedent in this Agreement Company shall not have been fulfilleddeposited accrued and unpaid interest in accordance with the preceding sentence.
(i) The applicable Remarketing Agent shall supply to any Beneficial Owner upon request information regarding the interest rate, a failed remarketing Spread (“Failed Remarketing”) shall be deemed to have occurred. In the event of a Failed Remarketingif any), Spread Multiplier (if any), Interest Rate Mode, Interest Rate Period, the Company shall issue a press release regarding next Interest Rate Adjustment Date and other terms applicable to such Failed Beneficial Owner's Notes.
(j) The Remarketing Agents may, in accordance with the Notes, modify the settlement and stating the aggregate Original Principal Amount of Debentures that the Company will repurchase as required remarketing procedures set forth in or pursuant to Section 15.04(a) of the Indenture Notes in order to facilitate the settlement and publish such information on its website on the World Wide Webremarketing process.
(k) The In the case of any Note being redeemed on an Interest Rate Adjustment Date therefor, the Company will requestshall give the applicable Remarketing Agent and the Trustee written notice of such redemption prior to the time the interest rate applicable to the next Interest Rate Period for such Note is established by such Remarketing Agent. In any other case, the Company shall give the Remarketing Agents and the Trustee written notice of redemption of any Note at least two business days prior to the date notice is required to be given to Holders. In addition, the Company shall give each Remarketing Agent designated as such in accordance with Section 4(a) hereof with respect to any Note being repaid at the option of the Holder thereof and the Trustee notice as soon as practicable, and in any event not later than 20 twelve Business Days prior to April 16, 2009 (the date next succeeding Interest Rate Adjustment Date therefor of each such Note which will be repaid by which Holders are required to give notice pursuant to Section 15.03(a) the Company at the option of the Indenture), that the Depositary notify its participants of the potential remarketing of the Debentures, the identities of the Holder thereof on or prior to such Interest Rate Adjustment Date. Each Remarketing Agents, the procedures a Beneficial Owner must follow Agent's obligation to deliver a Hold Notice, the date remarket any Note shall terminate immediately upon receipt by which such Hold Notice must be delivered and the right of the Beneficial Owners of Debentures to require it from the Company to purchase Debentures if there is a Failed Remarketing of any notice of redemption or upon the other circumstances provided in the Indenture. The Company will also issue a press release and publish such information on its website on the World Wide Webrepayment thereof.
(l) It is understood and agreed that the Remarketing Agents shall not have any obligation whatsoever to purchase any Debentures, whether in the remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Debentures for remarketing or to otherwise expend or risk their own funds or incur or be exposed to financial liability in the performance of their respective duties under this Agreement.
(m) If a Holder of Debentures whose Debentures were sold in the remarketing contemplated by this Agreement does not receive payment for such Debentures (with respect to such Holder, a “Failed Settlement”), such Holder will have the right to require the Company to purchase for cash on the date of the Failed Settlement all or a portion of such Debentures at the Remarketing Purchase Price. Such Holder shall notify the Company as promptly as possible of the occurrence of the Failed Settlement. Upon receipt of confirmation of the Failed Settlement from a Remarketing Agent, the Company shall purchase such Debentures for which an election is made as promptly as possible following the Failed Settlement.
Appears in 1 contract
Samples: Remarketing Agreement (Newell Co)
Appointment and Obligations of the Remarketing Agents. (a) Unless this Agreement is otherwise terminated in accordance with Section 11 hereof, in accordance with the terms, but subject to the conditions, of this Agreement, the The Company hereby appoints Xxxxxx Xxxxxxx each of Citigroup Global Markets Inc. and Xxxxxxx Xxxxx, UBS Securities LLC and Xxxxxx Xxxxxxx each of Citigroup Global Markets Inc. and Xxxxxxx XxxxxUBS Securities LLC, acting severally and not jointly, hereby accept accepts such appointment, (i) as exclusive Remarketing Agents to use their reasonable best efforts to remarket the Debentures determine, in accordance consultation with the Company, in the manner provided for herein, in the Indenture (as in effect on the date of this Remarketing Agreement) with respect to the Notes, and this Agreement in the Purchase Contract Agreement, the Reset Rate that, in the opinion of the Remarketing Agents, will be reasonable and consistent with market practice at the time of remarketing, and, when applied to the Notes (assuming, even if not true, that all of the Notes are included in the remarketing), enable the then current aggregate market value of the Notes to have a value equal to at least 100.50% of the Remarketing Value as of the Remarketing Date or as of any Subsequent Remarketing Date, as the case may be, provided that the Company, by notice to the Remarketing Agents prior to (A) the tenth Business Day preceding the Remarketing Date, with respect to any remarketing to occur on either the Remarketing Date or the two Business Days immediately following such Remarketing Date, (B) the thirteenth Business Day preceding April 6, 2005 with respect to any remarketing to occur on any of the three Business Days immediately preceding April 6, 2005, or (C) the thirteenth Business Day preceding the Stock Purchase Date with respect to any remarketing to occur on any of the three Business Days immediately preceding such Stock Purchase Date, shall, if applicable, limit the Reset Rate so that it does not exceed the maximum rate permitted by applicable law, and (ii) as the exclusive Remarketing Agents with respect (subject to the Debentures not subject right of such Remarketing Agents to a duly submitted (and not timely withdrawnappoint additional remarketing agents hereunder as described below) Hold Noticeto remarket the Notes to be included in the remarketing on the Remarketing Date or any Subsequent Remarketing Date, as the case may be. The Company agrees that a the Remarketing Agent Agents shall have the right (with the agreement of the other Remarketing Agent)right, on prior 15 Business Days notice to the Company, to appoint one or more additional remarketing agents so long as any such additional remarketing agents shall be reasonably acceptable to the Company. Upon any such appointment, the parties shall enter into an appropriate amendment to this Agreement to reflect the addition of any such remarketing agent.
(b) It is expressly understood Subject to the terms and agreed by and between the parties hereto that conditions set forth herein, the Remarketing Agents shall use reasonable efforts to (i) remarket on the Remarketing Date the Notes that the Purchase Contract Agent or the Custodial Agent shall have notified the Remarketing Agents are to be remarketed at a Reset Rate such that the then current aggregate market value of the Notes is equal to at least 100.50% of the Remarketing Value, and (ii) in the event the Remarketing Agents cannot be obligated to set establish such a Reset Rate on the Reset Yield on any DebenturesRemarketing Date, attempt to remarket any Debentures or to perform any such Notes on each of the other duties set forth two Business Days immediately following the Remarketing Date and, if necessary, on each of the three Business Days immediately preceding April 6, 2005, and, if necessary, on each of the three Business Days immediately preceding the Stock Purchase Date, in each case at a Reset Rate such that the then current aggregate market value of the Notes is equal to at least 100.50% of the Remarketing Value, and (iii) in the event of a Last Failed Remarketing, promptly return the Separate Notes, if any, included in such Last Failed Remarketing to the Collateral Agent to be held by the Collateral Agent in accordance with Section 4.5(b) of the Pledge Agreement (which Section is incorporated herein at by reference). After deducting the fee specified in Section 3 below, the remaining proceeds of any time such remarketing, together with the Agent-purchased Treasury Consideration, shall be delivered to the Purchase Contract Agent in accordance with Section 4.5(a) of the Pledge Agreement (which Section is incorporated herein by reference) and Section 5.4(b) of the Purchase Contract Agreement. The right of each Holder of Upper DECS or Separate Notes to have Notes included in any remarketing shall be limited to the extent that (i) the Remarketing Agents conduct a remarketing on the Remarketing Date or on any Subsequent Remarketing Date, as the case may be, pursuant to the terms of this Agreement, (ii) the Notes included in a remarketing have not been called for redemption pursuant to the Purchase Contract Agreement, (iii) the Remarketing Agents are able to find a purchaser or purchasers for the Notes included in a remarketing at a Reset Rate such that the then current aggregate market value of the conditions set forth in clause (a) of Section 8 hereof shall not have been fully and completely met Notes is equal to the satisfaction at least 100.50% of the Remarketing AgentsValue, and (iv) such purchaser or (ii) any of purchasers deliver the events set forth in clause (b) of Section 8 hereof shall have occurred or be continuingpurchase price therefor to the Remarketing Agents as and when required.
(c) The yield on the Debentures will be reset by Company and the Remarketing Agents on the Reset Yield Determination Date to the yield (the “Reset Yield”) for the period from and including the agree that any successful Remarketing Reset Date to but excluding May 1, 2010 (or, if such day is not a Business Day, the immediately succeeding Business Day) necessary for the proceeds from the remarketing of the Debentures, net of any fee to the Remarketing Agents, to be 100% of the Accreted Principal Amount, as of such Remarketing Reset Date, of the Debentures remarketed; provided that the Reset Yield shall not exceed the maximum rate permitted by law and shall not be less Notes will settle no later than 0% per annum.
(d) The Company confirms that the deadline for delivering a Hold Notice to the Paying Agent is 5:00 p.m.10:00AM, New York City time, time on April 16, 2009.
(e) Notwithstanding the foregoing, if (i) Holders of less than $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed in connection with third Business Day following the Remarketing Reset Date pursuant to Section 15.03 of the Indenture or (ii) a Failed Remarketing occurs on the Remarketing Reset Date, the Reset Yield shall be the yield necessary, in the judgment of the or Subsequent Remarketing Agents based on bids from at least three independent nationally recognized securities dealers selected by the Remarketing Agents, for the Debentures to trade at a price equal to 100% of the Accreted Principal Amount thereof as of such Remarketing Reset Date. If the Remarketing Agents are not able to obtain bids from at least three independent nationally recognized securities dealers on the Remarketing Reset Date, the Reset Yield shall be 3.55175%. If the Reset Yield is established on the Remarketing Reset Date but a Failed Remarketing occurs after such date, such Reset Yield will continue to apply to the Debentures notwithstanding such Failed Remarketing.
(f) By approximately 4:30 p.m., New York City time, on the Reset Yield Determination Date, the Remarketing Agents shall notify the Company, the Trustee, the Paying Agent and the Depositary by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Reset Yield and the Closing Date and the Company only of the Applicable Time or, if as applicable, a Failed Remarketing. The Company shall issue a press release stating such Reset Yield and publish such information on its website on the World Wide Web. The Reset Yield, determined as provided in this Section 4, shall which time may be conclusive and binding on the Holders and Beneficial Owners of the Debentures.
(g) As early as practicable, and, in any event, postponed by 5:00 p.m., New York City time, on April 16, 2009, the Company shall notify agreement between the Remarketing Agents and the Trustee by telephoneCompany (such date and time of settlement for the Notes being herein called, confirmed in writing (which may include facsimile or other electronic transmissionthe "Closing Date"), of the Original Principal Amount of Debentures that is not subject to a duly submitted (and not timely withdrawn) Hold Notice.
(h) If Holders of at least $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed with respect to the Remarketing Reset Date (a “Required Remarketing”), the Remarketing Agents shall use their reasonable best efforts to conduct such remarketing on any Business Day during the Remarketing Period as selected by the Remarketing Agents in accordance with the terms of this Agreement and the Indenture in consultation with the Company.
(i) If the Debentures are successfully remarketed by the Remarketing Agents on the Remarketing Reset Date, the Remarketing Agents shall deduct the fee specified in Annex I to this Agreement from the proceeds of such remarketing and remit the remaining proceeds, which shall be at least 100% of the Accreted Principal Amount of the Debentures remarketed as of the Remarketing Reset Date, to the Holders who elected or are deemed to have elected to participate in such remarketing on the Closing Date.
(j) If, by 4:00 p.m., New York City time, on the Remarketing Reset Date with respect to a Required Remarketing, a Required Remarketing is not conducted for any reason or the Remarketing Agents are unable to remarket all Debentures for which an election to remarket has been made or deemed to have been made or if, at any time prior to delivery of and payment for the Debentures on the Closing Date, a condition precedent in this Agreement shall not have been fulfilled, a failed remarketing (“Failed Remarketing”) shall be deemed to have occurred. In the event of a Failed Remarketing, the Company shall issue a press release regarding such Failed Remarketing and stating the aggregate Original Principal Amount of Debentures that the Company will repurchase as required pursuant to Section 15.04(a) of the Indenture and publish such information on its website on the World Wide Web.
(k) The Company will request, not later than 20 Business Days prior to April 16, 2009 (the date by which Holders are required to give notice pursuant to Section 15.03(a) of the Indenture), that the Depositary notify its participants of the potential remarketing of the Debentures, the identities of the Remarketing Agents, the procedures a Beneficial Owner must follow to deliver a Hold Notice, the date by which such Hold Notice must be delivered and the right of the Beneficial Owners of Debentures to require the Company to purchase Debentures if there is a Failed Remarketing or upon the other circumstances provided in the Indenture. The Company will also issue a press release and publish such information on its website on the World Wide Web.
(ld) It is understood and agreed that the Remarketing Agents shall not have any obligation whatsoever to purchase any DebenturesNotes, whether in a remarketing held on the remarketing Remarketing Date or on any Subsequent Remarketing Date or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Debentures Notes for remarketing or to otherwise expend or risk their own funds or incur or be exposed to financial liability in the performance of their respective duties under this Agreement.
(m) If a Holder of Debentures whose Debentures were sold in the remarketing contemplated by this Agreement does not receive payment for such Debentures (with respect to such Holder, a “Failed Settlement”), such Holder will have the right to require the Company to purchase for cash on the date of the Failed Settlement all or a portion of such Debentures at the Remarketing Purchase Price. Such Holder shall notify the Company as promptly as possible of the occurrence of the Failed Settlement. Upon receipt of confirmation of the Failed Settlement from a Remarketing Agent, the The Company shall purchase such Debentures not be obligated in any case to provide funds to make payment upon delivery of Notes for which an election is made as promptly as possible following the Failed Settlementremarketing.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agents. (a) Unless this Agreement is otherwise terminated in accordance with Section 11 hereof, in accordance with the terms, but subject to the conditions, of this Agreement, the The Company hereby appoints Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx, and Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx, acting severally and not jointly, hereby accept such appointment, to use their reasonable best efforts to remarket the Debentures in accordance with the Indenture and this Agreement [_______] as the exclusive Remarketing Agents with respect Agent[s], and, subject to the Debentures not subject to a duly submitted (terms and not timely withdrawn) Hold Notice. The Company agrees that conditions set forth herein, [_______][severally] hereby accepts appointment as a Remarketing Agent shall have Agent, for the right purpose of (with i) remarketing the agreement Remarketed Notes on behalf of the other Remarketing Agent)holders thereof, on prior notice to (ii) determining, in consultation with the Company, to appoint one or more additional remarketing agents so long in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Notes, and (iii) performing such other duties as any such additional remarketing agents shall be reasonably acceptable are assigned to the Company. Upon any such appointment, Remarketing Agent in the parties shall enter into an appropriate amendment to this Agreement to reflect the addition of any such remarketing agentTransaction Documents.
(b) It is expressly understood 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 agreed by and between the parties hereto that Pledge Agreement, the Remarketing Agents Agent[s] shall not be obligated to set the Reset Yield on any Debentures, use [its][their] commercially reasonable efforts to remarket any Debentures or to perform any of the other duties set forth herein Remarketed Notes at any time that (i) any of the conditions set forth in clause (a) of Section 8 hereof shall not have been fully and completely met to the satisfaction of the applicable Remarketing Agents, or (ii) any of the events set forth in clause (b) of Section 8 hereof shall have occurred or be continuing.
(c) The yield on the Debentures will be reset by the Remarketing Agents on the Reset Yield Determination Date to the yield (the “Reset Yield”) for the period from and including the Remarketing Reset Date to but excluding May 1, 2010 (or, if such day is not a Business Day, the immediately succeeding Business Day) necessary for the proceeds from the remarketing of the Debentures, net of any fee to the Remarketing Agents, to be 100% of the Accreted Principal Amount, as of such Remarketing Reset Date, of the Debentures remarketedPrice; provided that the Reset Yield Company shall not exceed determine in its sole discretion if and when to attempt an Optional Remarketing, and the maximum rate permitted by law Company may commence or postpone or cancel an Optional Remarketing in its absolute and shall not be less than 0% per annum.
(d) The Company confirms that sole discretion. In the deadline for delivering a Hold Notice to the Paying Agent is 5:00 p.m., New York City timecase of an Optional Remarketing, on April 16, 2009.
(e) Notwithstanding the foregoing, if (i) Holders of less than $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed in connection with the any Remarketing Reset Date pursuant to Section 15.03 of the Indenture or (ii) a Failed Remarketing occurs on the Remarketing Reset Date, the Reset Yield shall be the yield necessary, in the judgment of the Remarketing Agents based on bids from at least three independent nationally recognized securities dealers selected by the Remarketing Agents, for the Debentures to trade at a price equal to 100% of the Accreted Principal Amount thereof as of such Remarketing Reset Date. If the Remarketing Agents are not able to obtain bids from at least three independent nationally recognized securities dealers on the Remarketing Reset Date, the Reset Yield shall be 3.55175%. If the Reset Yield is established on the Remarketing Reset Date but a Failed Remarketing occurs after such date, such Reset Yield will continue to apply to the Debentures notwithstanding such Failed Remarketing.
(f) By approximately 4:30 p.m., New York City time, on the Reset Yield Determination Date, the Remarketing Agents Agent[s] shall notify the Company, the Trustee, the Paying Collateral Agent and the Depositary by telephone, confirmed in writing (which may include facsimile or other electronic transmission), Quotation Agent of the Reset Yield amount and the Closing Date and the Company only issue of the Applicable Time orU.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, if applicable, a Failed Remarketing. The Company shall issue a press release stating such Reset Yield and publish such information on its website on the World Wide Web. The Reset Yield, determined as provided in this Section 4, shall which will be conclusive and binding on the Holders and Beneficial Owners of the Debentures.
(g) As early as practicable, and, in any event, by 5:00 p.m., New York City time, on April 16, 2009, the Company shall notify the Remarketing Agents and the Trustee by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Original Principal Amount of Debentures that is not subject to a duly submitted (and not timely withdrawn) Hold Notice.
(h) If Holders of at least $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed with respect to the Remarketing Reset Date (a “Required Remarketing”), the Remarketing Agents shall use their reasonable best efforts to conduct such remarketing on any Business Day during the Remarketing Period as selected by the Remarketing Agents Agent[s] in [its][their] sole discretion in accordance with the terms Purchase Contract and Pledge Agreement. The Company will cause the Quotation Agent to notify the Remarketing Agent[s] of this Agreement the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If [the][any] Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall be entitled to all rights, protections and privileges granted herein to the Indenture 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[s] shall use [its][their] commercially reasonable efforts to remarket the Remarketed 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 three Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agent[s] shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, that the Remarketed Notes should bear (the “Reset Rate”) in order for the Remarketed 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[s] will enable it to remarket all of the Remarketed 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.
(i) If the Debentures are successfully remarketed by the Remarketing Agents on the Remarketing Reset Date, the Remarketing Agents shall deduct the fee specified in Annex I to this Agreement from the proceeds of such remarketing and remit the remaining proceeds, which shall be at least 100% of the Accreted Principal Amount of the Debentures remarketed as of the Remarketing Reset Date, to the Holders who elected or are deemed to have elected to participate in such remarketing on the Closing Date.
(je) If, by 4:00 p.m., New York City time, on the applicable Remarketing Reset Date with respect to a Required RemarketingDate, a Required Remarketing is not conducted for any reason or (i) the Remarketing Agents are Agent[s] [is][are] unable to remarket Remarket all Debentures for which an election of the Remarketed Notes, at a price not less than the applicable Remarketing Price pursuant to remarket 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 made or deemed to have been made or if, at any time prior to delivery a Failed Remarketing will be determined in the sole reasonable discretion of and payment for the Debentures on the Closing Date, a condition precedent in this Agreement shall not have been fulfilled, a failed remarketing (“Failed Remarketing”) shall be deemed to have occurredRemarketing Agent[s]. In the event of a Failed Remarketing, the Company applicable interest rate on the 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[s] shall issue advise, by telephone (and promptly deliver a press release regarding such Failed Remarketing notice in writing thereafter):
(i) the Depository, the Purchase Contract Agent, the Trustee, the Collateral Agent, the Custodial Agent and stating the aggregate Original Principal Amount of Debentures that the Company will repurchase as required pursuant (and promptly deliver a notice in writing to Section 15.04(asuch Persons thereafter) of the Indenture and publish such information on its website on the World Wide Web.
(k) The Company will request, not later than 20 Business Days prior to April 16, 2009 (the date by which Holders are required to give notice pursuant to Section 15.03(a) of the Indenture), that the Depositary notify its participants of the potential remarketing of the Debentures, the identities of the Remarketing Agents, the procedures a Beneficial Owner must follow to deliver a Hold Notice, the date by which such Hold Notice must be delivered and the right of the Beneficial Owners of Debentures to require the Company to purchase Debentures if there is a Failed Remarketing or upon the other circumstances provided in the Indenture. The Company will also issue a press release and publish such information on its website on the World Wide Web.
(l) It is understood and agreed that the Remarketing Agents shall not have any obligation whatsoever to purchase any Debentures, whether in the remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Debentures for remarketing or to otherwise expend or risk their own funds or incur or be exposed to financial liability in the performance of their respective duties under this Agreement.
(m) If a Holder of Debentures whose Debentures were sold in the remarketing contemplated by this Agreement does not receive payment for such Debentures (Reset Rate with respect to the Notes and the aggregate principal amount of Remarketed Notes sold in such Holder, a “Failed Settlement”), such Holder will have Remarketing;
(ii) each purchaser (or the right to require the Company to purchase for cash on the date Depository Participant thereof) of Remarketed Notes of the Failed Settlement all or a portion Reset Rate and the aggregate principal amount of Remarketed Notes such Debentures at the Remarketing Purchase Price. Such Holder shall notify the Company as promptly as possible of the occurrence of the Failed Settlement. Upon receipt of confirmation of the Failed Settlement from a Remarketing Agent, the Company shall purchase such Debentures for which an election purchaser is made as promptly as possible following the Failed Settlement.to purchase;
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (South Jersey Industries Inc)
Appointment and Obligations of the Remarketing Agents. (a) Unless this Agreement is otherwise terminated in accordance with Section 11 hereof, in accordance with the terms, but subject to the conditions, of this Agreement, the The Company hereby appoints Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx, and Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx, acting severally and not jointly, hereby accept such appointment, to use their reasonable best efforts to remarket the Debentures several remarketing agents named in accordance with the Indenture and this Agreement Schedule I hereto as the exclusive Remarketing Agents with respect Agents, and Citigroup Global Markets Inc. as Representative of the Remarketing Agents. Each Remarketing Agent appoints the Representative to act on its behalf under this Agreement. The Representative, on behalf of the Remarketing Agents, and subject to the Debentures not subject to a duly submitted terms and conditions set forth herein, hereby accepts such appointment for the purpose of (and not timely withdrawni) Hold Notice. The Company agrees that a Remarketing Agent shall have remarketing the right (with the agreement Remarketed Senior Notes on behalf of the other Remarketing Agent)holders thereof, on prior notice to (ii) determining, in consultation with the Company, to appoint one or more additional remarketing agents so long in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as any such additional remarketing agents shall be reasonably acceptable are assigned to the Company. Upon any such appointment, Remarketing Agents in the parties shall enter into an appropriate amendment to this Agreement to reflect the addition of any such remarketing agentTransaction Documents.
(b) It is expressly understood and agreed by and between the parties hereto that the Remarketing Agents shall not be obligated Unless a Special Event Redemption has occurred prior to set the Reset Yield on any Debenturessuch date, to remarket any Debentures or to perform any of the other duties set forth herein at any time that (i) any of the conditions set forth in clause (a) of Section 8 hereof shall not have been fully and completely met to the satisfaction of the Remarketing Agents, or (ii) any of the events set forth in clause (b) of Section 8 hereof shall have occurred or be continuing.
(c) The yield on the Debentures will be reset by the Remarketing Agents on the Reset Yield Determination Date to the yield third Business Day immediately preceding May 16, 2006 (the “Reset Yield”) for the period from and including the Initial Remarketing Reset Date to but excluding May 1, 2010 (or, if such day is not a Business Day, the immediately succeeding Business Day) necessary for the proceeds from the remarketing of the Debentures, net of any fee to the Remarketing Agents, to be 100% of the Accreted Principal Amount, as of such Remarketing Reset Date, of the Debentures remarketed; provided that the Reset Yield shall not exceed the maximum rate permitted by law and shall not be less than 0% per annum.
(d) The Company confirms that the deadline for delivering a Hold Notice to the Paying Agent is 5:00 p.m., New York City time, on April 16, 2009.
(e) Notwithstanding the foregoing, if (i) Holders of less than $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed in connection with the Remarketing Reset Date pursuant to Section 15.03 of the Indenture or (ii) a Failed Remarketing occurs on the Remarketing Reset Date, the Reset Yield shall be the yield necessary, in the judgment of the Remarketing Agents based on bids from at least three independent nationally recognized securities dealers selected by the Remarketing Agents, for the Debentures to trade at a price equal to 100% of the Accreted Principal Amount thereof as of such Remarketing Reset Date. If the Remarketing Agents are not able to obtain bids from at least three independent nationally recognized securities dealers on the Remarketing Reset Date, the Reset Yield shall be 3.55175%. If the Reset Yield is established on the Remarketing Reset Date but a Failed Remarketing occurs after such date, such Reset Yield will continue to apply to the Debentures notwithstanding such Failed Remarketing.
(f) By approximately 4:30 p.m., New York City time, on the Reset Yield Determination Date, the Remarketing Agents shall notify the Company, the Trustee, the Paying Agent and the Depositary by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Reset Yield and the Closing Date and the Company only of the Applicable Time or, if applicable, a Failed Remarketing. The Company shall issue a press release stating such Reset Yield and publish such information on its website on the World Wide Web. The Reset Yield, determined as provided in this Section 4, shall be conclusive and binding on the Holders and Beneficial Owners of the Debentures.
(g) As early as practicable, and, in any event, by 5:00 p.m., New York City time, on April 16, 2009, the Company shall notify the Remarketing Agents and the Trustee by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Original Principal Amount of Debentures that is not subject to a duly submitted (and not timely withdrawn) Hold Notice.
(h) If Holders of at least $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed with respect to the Remarketing Reset Date (a “Required Remarketing”), the Remarketing Agents shall use their reasonable best efforts to conduct such remarketing remarket (“Initial Remarketing”) the Remarketed Senior Notes, at an aggregate price (the “Remarketing Price”), based on any Business Day during the Remarketing Period as selected by Reset Rate, equal to approximately (but not less than) 100.50% of the Remarketing Agents in accordance with sum of the terms of this Agreement Treasury Portfolio Purchase Price and the Indenture in consultation with the CompanySeparate Senior Notes Purchase Price.
(ic) If In the Debentures are successfully remarketed by the case of a Failed Initial Remarketing Agents and unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding June 16, 2006 (the “Second Remarketing Reset Date”), the Remarketing Agents shall deduct use their reasonable efforts to remarket (the fee specified “Second Remarketing”) the Remarketed Senior Notes at the Remarketing Price. In the case of a Failed Second Remarketing and unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding July 16, 2006 (the “Third Remarketing Date”), the Remarketing Agents shall use their reasonable efforts to remarket (the “Third Remarketing”) the Remarketed Senior Notes at the Remarketing Price. In the case of a Failed Third Remarketing and unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding the Purchase Contract Settlement Date (the “Final Remarketing Date”), the Remarketing Agents shall use their reasonable efforts to remarket (the “Final Remarketing”) the Remarketed Senior Notes at an aggregate price (the “Final Remarketing Price”), based on the Reset Rate, equal to approximately 100.50% (or, if the Remarketing Agents are unable to remarket the Remarketed Senior Notes at such price, at a price below 100.50%, but in Annex I to this Agreement from no event less than 100%, net of the Remarketing Fee) of the aggregate principal amount of the Remarketed Senior Notes being remarketed in such Final Remarketing. It is understood and agreed that the Remarketing on any Remarketing Date, other than the Final Remarketing Date, will be considered successful and no further attempts will be made if the resulting proceeds (net of such remarketing the Remarketing Fee) are at least 100.25% of the sum of the Treasury Portfolio Purchase Price and remit the remaining proceeds, which shall Separate Senior Notes Purchase Price. It is further understood and agreed that the Final Remarketing will be considered successful if the resulting proceeds (net of the Remarketing Fee) are at least 100% of the Accreted Principal Amount aggregate principal amount of the Debentures remarketed as of the Remarketing Reset Date, to the Holders who elected or are deemed to have elected to participate in such remarketing on the Closing DateRemarketed Senior Notes.
(jd) In connection with each Remarketing, the Representative shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, that the Senior Notes should bear (the “Reset Rate”) in order for the Remarketed Senior Notes to have an aggregate market value equal to the Remarketing Price or the Final Remarketing Price, as the case may be, and that in the sole reasonable discretion of the Representative will enable the Remarketing Agents to remarket all of the Remarketed Senior Notes at the Remarketing Price or Final Remarketing Price, as the case may be, in such Remarketing, provided that such rate shall not exceed the maximum interest rate permitted by law.
(e) In the event of a Failed Remarketing or if no Senior Notes are included in Corporate Units, and if none of the holders of the Separate Senior Notes elect to have Senior Notes be remarketed in such Remarketing, the applicable interest rate on the Senior Notes will not be reset and will continue to be the Coupon Rate set forth in the Indenture, as supplemented from time to time.
(f) If, by 4:00 p.m., p.m. (New York City time, ) on the applicable Remarketing Reset Date with respect to a Required RemarketingDate, a Required Remarketing is not conducted for any reason or the Remarketing Agents are unable to remarket all Debentures for which an election of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to remarket has been made or deemed to have been made or if, at any time prior to delivery of the terms and payment for the Debentures on the Closing Dateconditions hereof, a condition precedent in this Agreement shall not have been fulfilled, a failed remarketing (“Failed Remarketing”) Remarketing shall be deemed to have occurred, and the Representative shall advise, by telephone the Depositary, the Purchase Contract Agent and the Company, and return the Remarketed Senior Notes to the Collateral Agent or the Custodial Agent, as the case may be. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Representative.
(g) In the event of a Failed Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Representative shall advise, by telephone:
(1) the Depositary, the Purchase Contract Agent and the Company shall issue a press release regarding of the Reset Rate determined by the Representative in such Failed Remarketing and stating the aggregate Original Principal Amount principal amount of Debentures that Remarketed Senior Notes sold in such Remarketing;
(2) each purchaser (or the Company will repurchase as required pursuant to Section 15.04(aDepositary Participant thereof) of Remarketed Senior Notes of the Indenture Reset Rate and publish the aggregate principal amount of Remarketed Senior Notes such information on purchaser is to purchase; and
(3) each such purchaser to give instructions to its website Depositary Participant to pay the purchase price on the World Wide Webthird business day immediately following the date of such Successful Remarketing in same day funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary. The Remarketing Agents shall also, if required by the Securities Act or the rules and regulations promulgated thereunder, deliver to each purchaser a Prospectus in connection with the Remarketing.
(kh) The Company will requestAfter deducting any fees specified in Section 3 below, not later than 20 Business Days prior the proceeds from a Successful Remarketing (i) with respect to April 16, 2009 (the date by which Holders Senior Notes that are required to give notice pursuant to Section 15.03(a) components of the Indenture)Corporate Units, that shall be paid to the Depositary notify its participants Collateral Agent in accordance with Sections 5.07 and 7.03 of the potential remarketing Pledge Agreement, as the case may be, and Section 5.02 of the DebenturesPurchase Contract Agreement and (ii) with respect to the Separate Senior Notes, shall be paid to the identities Custodial Agent for payment to the holders of such Separate Senior Notes in accordance with Section 5.02 of the Remarketing Agents, the procedures a Beneficial Owner must follow to deliver a Hold Notice, the date by which such Hold Notice must be delivered Purchase Contract Agreement and the right Section 7.03 of the Beneficial Owners of Debentures to require the Company to purchase Debentures if there is a Failed Remarketing or upon the other circumstances provided in the Indenture. The Company will also issue a press release and publish such information on its website on the World Wide WebPledge Agreement.
(li) The right of each holder of Separate Senior Notes or Corporate Units to have Remarketed Senior Notes remarketed and sold on any Remarketing Date shall be subject to the conditions that (i) the Remarketing Agents conduct an (A) Initial Remarketing, (B) a Second Remarketing in the event of a Failed Initial Remarketing, (C) a Third Remarketing in the event of a Failed Second Remarketing and (D) a Final Remarketing in the event of a Failed Third Remarketing, each pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agents are able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, based on the Reset Rate, and (iv) such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agents as and when required.
(j) It is understood and agreed that the Remarketing Agents shall not have any obligation whatsoever to purchase any DebenturesRemarketed Senior Notes, whether in the remarketing Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Debentures Remarketed Senior Notes for remarketing Remarketing or to otherwise expend or risk their own funds or incur or to be exposed to financial liability in the performance of their respective duties under this Agreement.
(m) If a Holder , and without limitation of Debentures whose Debentures were sold in the remarketing contemplated by this Agreement does foregoing, the Remarketing Agents shall not receive payment for such Debentures (with respect to such Holder, a “Failed Settlement”), such Holder will have be deemed underwriters of the right to require Remarketed Senior Notes. Neither the Company nor the Remarketing Agents shall be obligated in any case to purchase for cash on the date provide funds to make payment upon tender of the Failed Settlement all or a portion of such Debentures at the Remarketing Purchase Price. Such Holder shall notify the Company as promptly as possible of the occurrence of the Failed Settlement. Upon receipt of confirmation of the Failed Settlement from a Remarketing Agent, the Company shall purchase such Debentures Remarketed Senior Notes for which an election is made as promptly as possible following the Failed SettlementRemarketing.
Appears in 1 contract
Samples: Remarketing Agreement (Chubb Corp)
Appointment and Obligations of the Remarketing Agents. (a) Unless this Agreement is otherwise terminated in accordance with Section 11 hereof, in accordance with the terms, but subject to the conditions, of this Agreement, the Company The Corporation hereby appoints Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx, and Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx, acting severally and not jointly, hereby accept such appointment, to use their reasonable best efforts to remarket the Debentures in accordance with the Indenture and this Agreement [_______] as the exclusive Remarketing Agents with respect Agent[s], and, subject to the Debentures not subject to a duly submitted (terms and not timely withdrawn) Hold Notice. The Company agrees that conditions set forth herein, [_______][severally] hereby accepts appointment as a Remarketing Agent shall have Agent, for the right purpose of (i) remarketing the Remarketed Notes on behalf of the holders thereof, (ii) determining, in consultation with the agreement of Corporation, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Supplemental Indenture, the Reset Rate for the Notes, and (iii) performing such other Remarketing Agent), on prior notice duties as are assigned to the Company, to appoint one or more additional remarketing agents so long as any such additional remarketing agents shall be reasonably acceptable to Remarketing Agent in the Company. Upon any such appointment, the parties shall enter into an appropriate amendment to this Agreement to reflect the addition of any such remarketing agentTransaction Documents.
(b) It is expressly understood Unless a Termination Event has occurred prior to such date, if the Corporation elects to conduct an Optional Remarketing during the Optional Remarketing Period selected by the Corporation pursuant to the Purchase Contract and agreed by and between Pledge Agreement, the parties hereto Remarketing Agent[s] shall use [its][their] commercially reasonable efforts to remarket the Remarketed Notes at the applicable Remarketing Price; provided that the Corporation shall determine in its sole discretion if and when to attempt an Optional Remarketing, and the Corporation may commence or postpone or cancel an Optional Remarketing Agents shall not be obligated to set in its absolute and sole discretion. In the Reset Yield case of an Optional Remarketing, on any DebenturesRemarketing Date, to remarket any Debentures or to perform any the Remarketing Agent[s] shall notify the Corporation, the Collateral Agent and the Quotation Agent of the other duties set forth herein at any time that (i) any amount and issue of the conditions set forth U.S. Treasury securities (or principal or interest strips thereof) that will constitute the Treasury Portfolio, which will be selected by the Remarketing Agent[s] in clause (a) [its][their] sole discretion in accordance with the Purchase Contract and Pledge Agreement. The Corporation will cause the Quotation Agent to notify the Remarketing Agent[s] of Section 8 hereof the Treasury Portfolio Purchase Price no later than 4:00 p.m. New York City time on such Remarketing Date. If [the][any] Remarketing Agent is also acting as Quotation Agent, the Quotation Agent shall not have been fully be entitled to all rights, protections and completely met privileges granted herein to the satisfaction of the Remarketing Agents, or (ii) any of the events set forth in clause (b) of Section 8 hereof shall have occurred or be continuingAgent.
(c) The yield 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 Debentures Final Remarketing Period, the Remarketing Agent[s] shall use [its][their] commercially reasonable efforts to remarket the Remarketed 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 reset by considered successful if the resulting proceeds are at least equal to the applicable Remarketing Price. The Corporation has the right to postpone the Final Remarketing in the Corporation’s sole and absolute discretion on any day prior to the last three Business Days of the Final Remarketing Period.
(d) In connection with a Remarketing, the Remarketing Agents on Agent[s] shall determine, in consultation with the Reset Yield Determination Date Corporation, the rate per annum, rounded to the yield nearest one-thousandth (0.001) of one percent per annum, that the Remarketed Notes should bear (the “Reset YieldRate”) in order for the period from Remarketed Notes to have an aggregate market value equal to at least the applicable Remarketing Price and including that in the reasonable discretion of the Remarketing Reset Date Agent[s] will enable it to but excluding May 1, 2010 (or, if such day is not a Business Day, the immediately succeeding Business Day) necessary for the proceeds from the remarketing remarket all of the Debentures, net of any fee to Remarketed Notes at no less than the applicable Remarketing Agents, to be 100% of the Accreted Principal Amount, as of Price in such Remarketing Reset Date, of the Debentures remarketedRemarketing; provided that the such Reset Yield Rate shall not exceed the maximum interest rate permitted by law and shall not be less than 0% per annum.
(d) The Company confirms that the deadline for delivering a Hold Notice to the Paying Agent is 5:00 p.m., New York City time, on April 16, 2009applicable law.
(e) Notwithstanding the foregoing, if (i) Holders of less than $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed in connection with the Remarketing Reset Date pursuant to Section 15.03 of the Indenture or (ii) a Failed Remarketing occurs on the Remarketing Reset Date, the Reset Yield shall be the yield necessary, in the judgment of the Remarketing Agents based on bids from at least three independent nationally recognized securities dealers selected by the Remarketing Agents, for the Debentures to trade at a price equal to 100% of the Accreted Principal Amount thereof as of such Remarketing Reset Date. If the Remarketing Agents are not able to obtain bids from at least three independent nationally recognized securities dealers on the Remarketing Reset Date, the Reset Yield shall be 3.55175%. If the Reset Yield is established on the Remarketing Reset Date but a Failed Remarketing occurs after such date, such Reset Yield will continue to apply to the Debentures notwithstanding such Failed Remarketing.
(f) By approximately 4:30 p.m., New York City time, on the Reset Yield Determination Date, the Remarketing Agents shall notify the Company, the Trustee, the Paying Agent and the Depositary by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Reset Yield and the Closing Date and the Company only of the Applicable Time or, if applicable, a Failed Remarketing. The Company shall issue a press release stating such Reset Yield and publish such information on its website on the World Wide Web. The Reset Yield, determined as provided in this Section 4, shall be conclusive and binding on the Holders and Beneficial Owners of the Debentures.
(g) As early as practicable, and, in any event, by 5:00 p.m., New York City time, on April 16, 2009, the Company shall notify the Remarketing Agents and the Trustee by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Original Principal Amount of Debentures that is not subject to a duly submitted (and not timely withdrawn) Hold Notice.
(h) If Holders of at least $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed with respect to the Remarketing Reset Date (a “Required Remarketing”), the Remarketing Agents shall use their reasonable best efforts to conduct such remarketing on any Business Day during the Remarketing Period as selected by the Remarketing Agents in accordance with the terms of this Agreement and the Indenture in consultation with the Company.
(i) If the Debentures are successfully remarketed by the Remarketing Agents on the Remarketing Reset Date, the Remarketing Agents shall deduct the fee specified in Annex I to this Agreement from the proceeds of such remarketing and remit the remaining proceeds, which shall be at least 100% of the Accreted Principal Amount of the Debentures remarketed as of the Remarketing Reset Date, to the Holders who elected or are deemed to have elected to participate in such remarketing on the Closing Date.
(j) If, by 4:00 p.m., New York City time, on the applicable Remarketing Reset Date with respect to a Required RemarketingDate, a Required Remarketing is not conducted for any reason or (i) the Remarketing Agents are Agent[s] [is][are] unable to remarket Remarket all Debentures for which an election of the Remarketed Notes, at a price not less than the applicable Remarketing Price pursuant to remarket 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 Corporation. Whether or not there has been made or deemed to have been made or if, at any time prior to delivery a Failed Remarketing will be determined in the sole reasonable discretion of and payment for the Debentures on the Closing Date, a condition precedent in this Agreement shall not have been fulfilled, a failed remarketing (“Failed Remarketing”) shall be deemed to have occurredRemarketing Agent[s]. In the event of a Failed Remarketing, the Company applicable interest rate on the 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[s] shall issue advise, by telephone (and promptly deliver a press release regarding notice in writing thereafter):
(i) the Depository, the Purchase Contract Agent, the U.S. Indenture Trustee, the Collateral Agent, the Custodial Agent and the Corporation (and promptly deliver a notice in writing to such Failed Remarketing and stating the aggregate Original Principal Amount of Debentures that the Company will repurchase as required pursuant to Section 15.04(aPersons thereafter) of the Indenture Reset Rate with respect to the Notes and publish the aggregate principal amount of Remarketed Notes sold in such information on Remarketing;
(ii) each purchaser (or the Depository Participant thereof) of Remarketed Notes of the Reset Rate and the aggregate principal amount of Remarketed Notes such purchaser is to purchase;
(iii) each such purchaser (if other than a Depository Participant) to give instructions to its website Depository Participant to pay the purchase price on the World Wide WebRemarketing Settlement Date in same day funds against delivery of the Remarketed Notes purchased through the facilities of the Depository; and
(iv) each such purchaser (or Depository Participant thereof) that the Remarketed Notes will not be delivered until the Remarketing Settlement Date and (if applicable) that if such purchaser wishes to trade the Remarketed 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. In the case of a Public Remarketing, the Remarketing Agent[s] 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 such Public Remarketing.
(ka) The Company will request, not later than 20 Business Days prior proceeds from a Successful Remarketing (i) with respect to April 16, 2009 (the date by which Holders Notes underlying the Pledged Applicable Ownership Interests in Notes that are required to give notice pursuant to Section 15.03(a) components of the Indenture)Corporate Units and (ii) with respect to the Separate Notes, that the Depositary notify its participants in each case, shall be applied in accordance with Section 5.02 of the potential remarketing of the Debentures, the identities of the Remarketing Agents, the procedures a Beneficial Owner must follow to deliver a Hold Notice, the date by which such Hold Notice must be delivered Purchase Contract and the right of the Beneficial Owners of Debentures to require the Company to purchase Debentures if there is a Failed Remarketing or upon the other circumstances provided in the Indenture. The Company will also issue a press release and publish such information on its website on the World Wide WebPledge Agreement.
(lb) It is understood and agreed that the Remarketing Agents Agent[s] shall not have any obligation whatsoever to purchase any DebenturesRemarketed Notes, whether in the remarketing Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender surrender of Debentures Remarketed Notes for remarketing Remarketing or to otherwise expend or risk their its own funds or incur or to be exposed to financial liability in the performance of their respective its duties under this Agreement.
(m) If a Holder of Debentures whose Debentures were sold . Neither the Corporation nor the Remarketing Agent[s] shall be obligated in the remarketing contemplated by this Agreement does not receive any case to provide funds to make payment for such Debentures (with respect to such Holder, a “Failed Settlement”), such Holder will have the right to require the Company to purchase for cash on the date upon surrender of the Failed Settlement all or a portion of such Debentures at the Remarketing Purchase Price. Such Holder shall notify the Company as promptly as possible of the occurrence of the Failed Settlement. Upon receipt of confirmation of the Failed Settlement from a Remarketing Agent, the Company shall purchase such Debentures Remarketed Notes for which an election is made as promptly as possible following the Failed SettlementRemarketing.
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Algonquin Power & Utilities Corp.)
Appointment and Obligations of the Remarketing Agents. (a) Unless this Agreement is otherwise terminated in accordance with Section 11 hereof, in accordance with the terms, but subject to the conditions, of this Agreement, the The Company hereby appoints Banc of America Securities LLC, Citigroup Global Markets Inc., Deutsche Bank Securities Inc., X.X. Xxxxxx Securities Inc., Xxxxxx Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated, RBC Capital Markets Corporation, Wachovia Capital Markets, LLC and Xxxxxxx Xxxxx, and Wedbush Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx, acting severally and not jointly, hereby accept such appointment, to use their reasonable best efforts to remarket the Debentures in accordance with the Indenture and this Agreement Securities Inc. as the exclusive Remarketing Agents with respect Agents, and, subject to the Debentures not subject to a duly submitted (terms and not timely withdrawn) Hold Notice. The Company agrees that a Remarketing Agent shall have the right (with the agreement of the other Remarketing Agent), on prior notice to the Company, to appoint one or more additional remarketing agents so long as any such additional remarketing agents shall be reasonably acceptable to the Company. Upon any such appointment, the parties shall enter into an appropriate amendment to this Agreement to reflect the addition of any such remarketing agent.
(b) It is expressly understood and agreed by and between the parties hereto that the Remarketing Agents shall not be obligated to set the Reset Yield on any Debentures, to remarket any Debentures or to perform any of the other duties set forth herein at any time that (i) any of the conditions set forth in clause (a) herein, Banc of Section 8 hereof shall not have been fully America Securities LLC, Citigroup Global Markets Inc., Deutsche Bank Securities Inc., X.X. Xxxxxx Securities Inc., Xxxxxx Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated, RBC Capital Markets Corporation, Wachovia Capital Markets, LLC and completely met to the satisfaction of the Remarketing Agents, or (ii) any of the events set forth in clause (b) of Section 8 hereof shall have occurred or be continuing.
(c) The yield on the Debentures will be reset by the Remarketing Agents on the Reset Yield Determination Date to the yield (the “Reset Yield”) for the period from and including the Remarketing Reset Date to but excluding May 1, 2010 (or, if such day is not a Business Day, the immediately succeeding Business Day) necessary for the proceeds from the remarketing of the Debentures, net of any fee to the Remarketing Agents, to be 100% of the Accreted Principal Amount, Wedbush Xxxxxx Securities Inc. hereby accept appointment as of such Remarketing Reset Date, of the Debentures remarketed; provided that the Reset Yield shall not exceed the maximum rate permitted by law and shall not be less than 0% per annum.
(d) The Company confirms that the deadline for delivering a Hold Notice to the Paying Agent is 5:00 p.m., New York City time, on April 16, 2009.
(e) Notwithstanding the foregoing, if (i) Holders of less than $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed in connection with the Remarketing Reset Date pursuant to Section 15.03 of the Indenture or (ii) a Failed Remarketing occurs on the Remarketing Reset Date, the Reset Yield shall be the yield necessary, in the judgment of the Remarketing Agents based on bids from at least three independent nationally recognized securities dealers selected by the Remarketing Agents, for the Debentures to trade at a price equal to 100% purpose of (i) remarketing the Remarketed Senior Notes on behalf of the Accreted Principal Amount thereof 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 Indenture, the Reset Rate for the Remarketed Senior Notes, and (iii) performing such other duties as of such Remarketing Reset Date. If are assigned to the Remarketing Agents are not able in the Transaction Documents.
(a) Unless a Special Event Redemption or a Termination Event has occurred prior to obtain bids from at least three independent nationally recognized securities dealers on the Remarketing Reset Date, the Reset Yield shall be 3.55175%. If the Reset Yield is established on the Remarketing Reset Date but a Failed Remarketing occurs after such date, such Reset Yield will continue to apply to the Debentures notwithstanding such Failed Remarketing.
(f) By approximately 4:30 p.m., New York City time, on the Reset Yield Determination Date, fifth Business Day immediately preceding the Remarketing Agents shall notify the Company, the Trustee, the Paying Agent and the Depositary by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Reset Yield and the Closing Date and the Company only of the Applicable Time or, if applicable, a Failed Remarketing. The Company shall issue a press release stating such Reset Yield and publish such information on its website on the World Wide Web. The Reset Yield, determined as provided in this Section 4, shall be conclusive and binding on the Holders and Beneficial Owners of the Debentures.
(g) As early as practicable, and, in any event, by 5:00 p.m., New York City time, on April 16, 2009, the Company shall notify the Remarketing Agents and the Trustee by telephone, confirmed in writing (which may include facsimile or other electronic transmission), of the Original Principal Amount of Debentures that is not subject to a duly submitted (and not timely withdrawn) Hold Notice.
(h) If Holders of at least $50 million aggregate Original Principal Amount of Debentures have elected or are deemed to have elected to have their Debentures remarketed with respect to the Remarketing Reset Purchase Contract Settlement Date (a the “Required RemarketingInitial Remarketing Date”), the Remarketing Agents shall use their reasonable best efforts to conduct remarket (the “Initial Remarketing”) the Remarketed Senior Notes at the Remarketing Price.
(b) 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 remarketing date, on any the fourth Business Day during immediately preceding the Purchase Contract Settlement Date (the “Second Remarketing Period as selected by Date”), the Remarketing Agents in accordance shall use their 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 Agents shall use their 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least equal to the Remarketing Price.
(c) In connection with each Remarketing, the terms of this Agreement and the Indenture Remarketing Agents shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, that the Remarketed Senior Notes should bear (the “Reset Rate”) in order for the Remarketed Senior Notes to have an aggregate offering price equal to the Remarketing Price and that in the sole reasonable discretion of the Remarketing Agents will enable them to remarket all of the Remarketed Senior Notes at the Remarketing Price in such Remarketing; provided that such rate shall not exceed the maximum interest rate permitted by applicable law.
(i) If the Debentures are successfully remarketed by the Remarketing Agents on the Remarketing Reset Date, the Remarketing Agents shall deduct the fee specified in Annex I to this Agreement from the proceeds of such remarketing and remit the remaining proceeds, which shall be at least 100% of the Accreted Principal Amount of the Debentures remarketed as of the Remarketing Reset Date, to the Holders who elected or are deemed to have elected to participate in such remarketing on the Closing Date.
(jd) If, by 4:00 p.m., New York City time, on the applicable Remarketing Reset Date with respect to a Required RemarketingDate, a Required Remarketing is not conducted for any reason or (1) the Remarketing Agents are unable to remarket all Debentures for which an election of the Remarketed Senior Notes, other than to remarket has been made or deemed to have been made or ifthe Company, at any time prior the Remarketing Price pursuant to delivery the terms and conditions hereof or (2) the Remarketing did not occur on such Remarketing Date because one of and payment for the Debentures on the Closing Dateconditions set forth in Section 6 hereof was not satisfied, a condition precedent in this Agreement shall not have been fulfilled, a failed remarketing (“Failed Remarketing”) Remarketing shall be deemed to have occurred, and the Remarketing Agents shall so advise by telephone (promptly confirmed in writing) the Depositary, 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 Agents.
(e) In the event of a Failed Successful Remarketing, by approximately 4:30 p.m., New York City time, on the applicable Remarketing Date, the Remarketing Agents shall advise, by telephone (promptly confirmed in writing in the case of clause (1)):
(1) the Depositary, the Purchase Contract Agent, the Trustee and the Company of the Reset Rate determined by the Remarketing Agents in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing;
(2) each purchaser (or the Depositary Participant thereof) of Remarketed Senior Notes of the Reset Rate and the number of Remarketed Senior Notes such purchaser is to purchase;
(3) each such purchaser (if other than a Depositary Participant) to give instructions to its Depositary Participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary; and
(4) each such purchaser (or Depositary Participant thereof) that the Remarketed 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 Company shall issue a press release regarding Remarketing Settlement Date will be five Business Days or four Business Days, respectively, following the date of such Failed Remarketing and stating that if such purchaser wishes to trade the aggregate Original Principal Amount Remarketed Senior Notes that it has purchased prior to the third Business Day preceding the Remarketing Settlement Date, such purchaser will have to specify an alternative settlement cycle at the time of Debentures that any such trade to prevent failed settlement. The Remarketing Agents shall also, if required by the Company will repurchase as required pursuant to Section 15.04(a) Securities Act, deliver, in conformity with the requirements of the Indenture and publish such information on its website on Securities Act, to each purchaser a Prospectus in connection with the World Wide WebRemarketing.
(kf) The Company will request, not later than 20 Business Days prior proceeds from a Successful Remarketing (i) with respect to April 16, 2009 (the date by which Holders Senior Notes underlying the Applicable Ownership Interests in Senior Notes that are required to give notice pursuant to Section 15.03(a) components of the Indenture), that Corporate Units shall be paid to the Depositary notify its participants Collateral Agent in accordance with Section 5.02 of the potential remarketing Purchase Contract and Pledge Agreement and (ii) with respect to the Separate Senior Notes, shall be paid to the Custodial Agent for payment to the holders of such Separate Senior Notes in accordance with Section 5.02 of the Debentures, Purchase Contract and Pledge Agreement.
(g) 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 identities of conditions that (i) the Remarketing AgentsAgents conduct (A) an Initial Remarketing, (B) a Second Remarketing in the procedures a Beneficial Owner must follow to deliver a Hold Notice, the date by which such Hold Notice must be delivered and the right event of the Beneficial Owners of Debentures to require the Company to purchase Debentures if there is a Failed Remarketing or upon on the other circumstances provided Initial Remarketing Date and (C) a Final Remarketing in the Indenture. The Company will also issue event of a press release and publish such information on its website Failed Remarketing on the World Wide WebSecond 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 Agents are 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 Agents as and when required.
(lh) It is understood and agreed that the Remarketing Agents shall not have any obligation whatsoever to purchase any DebenturesRemarketed Senior Notes, whether in the remarketing Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Debentures Remarketed Senior Notes for remarketing Remarketing or to otherwise expend or risk their its own funds or incur or to be exposed to financial liability in the performance of their respective its duties under this Agreement.
(m) If a Holder of Debentures whose Debentures were sold in the remarketing contemplated by this Agreement does not receive payment for such Debentures (with respect to such Holder, a “Failed Settlement”), such Holder will have the right to require . Neither the Company nor the Remarketing Agents shall be obligated in any case to purchase for cash on the date provide funds to make payment upon tender of the Failed Settlement all or a portion of such Debentures at the Remarketing Purchase Price. Such Holder shall notify the Company as promptly as possible of the occurrence of the Failed Settlement. Upon receipt of confirmation of the Failed Settlement from a Remarketing Agent, the Company shall purchase such Debentures Remarketed Senior Notes for which an election is made as promptly as possible following the Failed SettlementRemarketing.
Appears in 1 contract
Samples: Supplemental Remarketing Agreement (Public Service Co of New Mexico)
