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EXHIBIT 4.15
, [ ], 1999 (this "Agreement"), among (i)
Calpine Corporation, a Delaware Corporation (the "Company"), (ii)
Calpine Capital Trust, a Delaware business trust (the "Trust"), (iii)
The Bank of New York, as Tender Agent and (iv) Credit Suisse First
Boston Corporation, a Massachusetts corporation (together with its
successors and assigns, the "Remarketing Agent").
RECITALS
WHEREAS the Trust is a statutory business trust that has been created
under Delaware law and exists pursuant to the Trust Agreement (as defined below)
and a certificate of trust filed with the Delaware Secretary of State; and
WHEREAS the Trust is issuing on today's date or has heretofore issued
$200,000,000 (or up to $230,000,000 to the extent the over-allotment option is
exercised in full) aggregate Liquidation Amount (as defined below) of
Remarketable Term Income Deferrable Equity Securities (the "HIGH TIDES(sm)")
representing preferred undivided beneficial interests in the assets of the Trust
and has used the proceeds of the HIGH TIDES, together with the proceeds of
$6,185,600 (or up to $7,113,450 to the extent the over-allotment option is
exercised in full) aggregate Liquidation Amount of its Common Securities (as
defined in the Trust Agreement) of the Trust, to purchase $206,185,600 (or up to
$207,113,450 to the extent the over-allotment option is exercised in full)
aggregate principal amount of Convertible Subordinated Debentures Due 2029 (the
"Debentures") issued by the Company pursuant to the Indenture (as defined
below);
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. (a) The following terms shall have the meanings
indicated below:
"Additional Amounts" has the meaning specified in the Indenture.
"Administrative Trustees" has the meaning specified in the definition
of Trust Agreement in this Section 1.
"Broker-Dealer" has the meaning assigned to such term in Section 5.
"Broker-Dealer Agreement" means an agreement between the Remarketing
Agent and a Broker-Dealer in substantially the form of Annex 1.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in the City of New York are authorized or
required by law or executive order to remain closed, or (c) a day on which the
Property Trustee's or Debenture Trustee's Corporate Trust Office (as defined in
the Trust Agreement with respect to the Property Trustee and in the Indenture
with respect to the Debenture Trustee) is closed for business.
"Cause" means any one of the following events or circumstances shall
have occurred and be continuing: (i) the bankruptcy or insolvency of the
Remarketing
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Agent; or (ii) the Remarketing Agent shall cease to be registered as a
broker-dealer under the Exchange Act.
"Closing Price" means for any security on any day the last reported
sale price of the security on that day, or in case no sale takes place on that
day, the average of the closing bid and asked prices in each case on the
principal national securities exchange on which the securities are listed or
admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the National Market System of the National Association
of Securities Dealers, Inc. or any successor national automated interdealer
quotation system (the "NNM") or, if the securities are not listed or admitted to
trading on any national securities exchange or quoted on the NNM, the average of
the closing bid and asked prices of the security in the over-the-counter market
as furnished by any New York Stock Exchange member firm selected by the Company
for that purpose.
"Commission" means the Securities and Exchange Commission or any
successor thereto.
"Common Stock" has the meaning assigned to such term in the Indenture.
"Company" has the meaning assigned to such term in the preamble to this
Agreement.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the Remaining
Life that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the Remaining Life. If no United States Treasury
security has a maturity which is within a period from three months before to
three months after the Reset Date, the two most closely corresponding United
States Treasury securities shall be used as the Comparable Treasury Issue, and
the rate being calculated shall be interpolated or extrapolated on a
straight-line basis, rounding to the nearest month using such securities.
"Comparable Treasury Price" means (A) the arithmetic mean of five
Reference Treasury Dealer Quotations, after excluding the highest and lowest
such Reference Treasury Dealer Quotations, or (B) if the Debenture Trustee
obtains fewer than five such Reference Treasury Dealer Quotations, the
arithmetic mean of all such Reference Treasury Dealer Quotations.
"Convertible Remarketing" has the meaning specified in Section 2(d).
"Debenture Trustee" means The Bank of New York, as Trustee under the
Indenture (including its successors as Debenture Trustee thereunder).
"Debentures" has the meaning assigned to such term in the recitals to
this Agreement.
"Declaration Trustees" means collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.
"Disclosure Documents" means the Registration Statement, or if the
Registration Statement is not required to be filed with the Commission pursuant
to Section 2(b), the Nonregistered Offering Documents, including any preliminary
offering document or Preliminary Prospectus, as applicable, and as each may be
amended or supplemented.
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"Effective Time" means the date and time as of which the Registration
Statement or its most recent post-effective amendment is declared effective by
the Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Failed Final Remarketing" has the meaning specified in Section 2(d).
"Final Remarketing" has the meaning specified in Section 2(d).
"Final Remarketing Period" means the period beginning on the Business
Day immediately following the Initial Remarketing Termination Date and ending on
the day which is ten (10) Business Days (or such shorter period as shall be
agreed to by the Remarketing Agent) after the Initial Remarketing Termination
Date.
"Final Reset Date" means October __, 2004.
"Global Security Certificate" has the meaning assigned to (i) the term
"Global Preferred Securities" in the Trust Agreement if the Subject Securities
are HIGH TIDES or (ii) the term "Global Security" in the Indenture if the
Subject Securities are Debentures.
"HIGH TIDES" has the meaning assigned to such term in the recitals to
this Agreement.
"Indenture" means the Indenture, dated as of _______, 1999, between the
Company and the Debenture Trustee, as such indenture may from time to time be
amended, modified or supplemented.
"Initial Failed Remarketing" has the meaning specified in Section 2(d).
"Initial Remarketing" has the meaning specified in Section 2(d).
"Initial Remarketing Period" means the period beginning on the first
Business Day immediately following the Tender Notification Date and ending on
the day which is ten (10) Business Days (or such shorter period as shall be
agreed to by the Remarketing Agent) after the Tender Notification Date.
"Initial Remarketing Termination Date" means the tenth (10) Business
Day following the Tender Notification Date (or such shorter period as shall be
agreed to by the Remarketing Agent).
"Interest" means all quarterly payments, interest on quarterly payments
not paid on the applicable Interest Payment Date and Additional Amounts, as
applicable.
"Interest Payment Date" has the meaning specified in the Indenture and
the Trust Agreement.
"Liquidation Amount" means, with respect to a HIGH TIDES or Common
Security, its stated liquidation amount of $50.
"Market Event" means the occurrence of (i) a change in U.S. or inter
national financial, political or economic conditions or currency exchange rates
or exchange controls as would, in the sole judgment of Remarketing Agent, be
likely to prejudice materially the success of the Remarketing, issue, sale or
distribution of the
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Subject Securities, or (ii) (A) any change, or any development or event
involving a prospective change, in the condition (financial or other), business,
properties or results of operations of the Company or its subsidiaries which, in
the sole judgment the Remarketing Agent, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the Remarketing or the
sale of and payment for the Subject Securities; (B) any downgrading in the
rating of the Subject Securities or any other debt securities of the Company by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act), or any public announcement
that any such organization has under surveillance or review its rating of the
Subject Securities or any other debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (C) any suspension or
limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (D) any banking moratorium declared by U.S. Federal or
New York authorities; or (E) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency if, in the
sole judgment of the Remarketing Agent, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the Remarketing or the sale of and
payment for the Subject Securities.
"Maximum Rate" means a rate per annum equal to the Treasury Rate plus
6%.
"No Registration Opinion" means an opinion of Securities Counsel that
the securities issuable in the Remarketing do not need to be registered under
the Securities Act and that no other filing of any kind is required to be made
with the Commission as a condition to the sale of such securities, which No
Registration Opinion shall be reasonably satisfactory to the Remarketing Agent
and its counsel.
"Nonconvertible Remarketing" has the meaning specified in Section 2(d).
"Nonregistered Offering Documents" has the meaning specified in Section
6(a).
"Notice of Purchasers" means a notice delivered by the Remarketing
Agent on the Reset Date to (i) the Tender Agent if the Subject Securities are
not evidenced by a Global Security Certificate on the Reset Date or (ii) The
Depository Trust Company if the Subject Securities are evidenced by a Global
Security Certificate on the Reset Date, in either case naming the parties who
will purchase the Subject Securities from the Remarketing Agent.
"Par Amount" means $50 per Subject Security.
"Paying Agent" has the meaning specified in the Trust Agreement.
"Preliminary Prospectus" means each prospectus included in the
Registration Statement, or amendment thereof, before it becomes effective under
the Securities Act and any prospectus which may be filed by the Company with the
Commission pursuant to Rule 424(a) (or any successor applicable rule) of the
rules and regulations under the Securities Act (the "Rules and Regulations") in
connection with the Registration Statement.
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"Primary Treasury Dealer" has the meaning specified in the definition
of Quotation Agent in this Section 1.
"Property Trustee" has the meaning specified in the definition of Trust
Agreement in this Section 1.
"Prospectus" means the final prospectus which will be filed with the
Commission pursuant to Rule 424(b) (or any successor applicable rule) of the
Rules and Regulations and deemed to be a part of the Registration Statement at
the time of its effectiveness under the Securities Act pursuant to paragraph (b)
of Rule 430A (or any successor applicable rule) of the Rules and Regulations.
"Quotation Agent" means Credit Suisse First Boston Corporation and its
successors; provided, however, that if Credit Suisse First Boston Corporation
shall cease to be a primary United States Government securities dealer in The
City of New York (a "Primary Treasury Dealer"), the Company shall substitute
therefor another Primary Treasury Dealer.
"Reference Treasury Dealer" means (i) the Quotation Agent and (ii) any
other Primary Treasury Dealer selected by the Debenture Trustee after
consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer, the arithmetic mean, as determined by the Debenture
Trustee of the bid and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) quoted in writing to the
Debenture Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day preceding the Reset Date.
"Registration Statement" means a registration statement covering the
securities to be issued in the Remarketing filed with the Commission pursuant to
the Securities Act, including any amendments thereto and any document or other
information incorporated by reference therein.
"Remaining Life" means the period beginning on (and including) the
Reset Date and ending on [ ] , 2029.
"Remarketing" has the meaning specified in the recitals to this
Agreement.
"Remarketing Agent" has the meaning assigned to such term in the
preamble to this Agreement (including any successor Remarketing Agent).
"Remarketing Conditions" means the following factors: (i) short-term
and long-term market rates and indices of such short-term and long-term rates,
(ii) market supply and demand for short-term and long-term securities, (iii)
yield curves for short-term and long-term securities comparable to the Subject
Securities, (iv) industry and financial conditions which may affect the Subject
Securities, (v) the number of Subject Securities to be remarketed, (vi) the
number of potential purchasers, (vii) the current ratings by nationally
recognized statistical rating organizations of long-term subordinated debt of
the Company and of other outstanding capital securities of the Company's trust
subsidiaries, (viii) the number of shares of Common Stock, if any, into which
the Subject Securities will be convertible and (ix) the length and type of call
protections, if any.
"Remarketing Notice" has the meaning specified in Section 2(d).
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"Reset Date" means any date (1) not later than October __, 2004, or the
Final Reset Date, or, if such date is not a Business Day, the next succeeding
Business Day and (2) not earlier than 70 Business Days prior to October __,
2004, as may be determined by the Remarketing Agent, in its sole discretion, for
settlement of a successful remarketing.
"Rules and Regulations" has the meaning specified in the definition of
Preliminary Prospectus in this Section 1.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Securities Counsel" means counsel experienced in matters relating to
securities law.
"Subject Securities" means (i) the HIGH TIDES if, on the Reset Date,
the Debentures have not been distributed to holders of HIGH TIDES in connection
with a liquidation or dissolution of the Trust or (ii) otherwise, the
Debentures.
"Tender Agent" means (i) the Property Trustee if the Subject Securities
are HIGH TIDES or (ii) the Debenture Trustee if the Subject Securities are
Debentures.
"Tender Notification Date" means a Business Day no earlier than ten
(10) Business Days following the date of the Remarketing Notice (or such shorter
period as shall be agreed to by the Remarketing Agent).
"Term Call Protections" has the meaning assigned to such term in
Section 2(c).
"Term Conversion Ratio" has the meaning assigned to such term in
Section 2(c).
"Term Conversion Price" has the meaning assigned to such term in
Section 2(c).
"Term Provisions" has the meaning specified in Section 2(c).
"Term Rate" has the meaning assigned to such term in Section 2(c).
"Treasury Rate" means (i) the yield, under the heading which represents
the average for the week immediately prior to the date of calculation, appearing
in the most recently published statistical release designated H.15(519) or any
successor publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Remaining Life (if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be determined
and the Treasury Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding to the nearest month) or (ii) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semiannual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
the Reset Date. The Treasury Rate shall be calculated by the Remarketing Agent
on the third Business Day preceding the Reset Date.
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"Trust" has the meaning assigned to such term in the preamble to this
Agreement.
"Trust Agreement" means the Amended and Restated Declaration of Trust,
dated as of [ ], 1999, among the Company, as Depositor, The Bank of New York, as
Property Trustee (the "Property Trustee"), The Bank of New York (Delaware), as
Delaware Trustee (the "Delaware Trustee"), Xxxxx Xxxxxxxxxx, Xxx X. Xxxxxx and
Xxxxxx X. Xxxxx (the "Administrative Trustees") and the holders from time to
time of undivided beneficial interests in the assets of the Trust, as such
agreement may from time to time be amended, modified or supplemented.
(b) Capitalized terms used herein and not otherwise defined but defined
in the Trust Agreement or Indenture shall have the meanings assigned to such
terms in the Trust Agreement or the Indenture, as applicable.
2. Acceptance and Performance of Duties. The Remarketing Agent, the
Company, the Trust and the Tender Agent agree as follows:
(a) The Remarketing Agent will perform the duties and obligations of
Remarketing Agent for the Remarketed Securities as specified in the Trust
Agreement (if the Tendered Securities are the HIGH TIDES), the Indenture (if the
Tendered Securities are the Debentures) and in this Agreement in good faith and
in compliance with the provisions of applicable laws.
(b) The Remarketing Agent will use its best efforts to remarket all
Subject Securities tendered or deemed tendered for sale; provided, however, that
the Remarketing Agent will not be obligated to attempt to remarket such Subject
Securities, or to determine the Term Rate pursuant to Section 2(c) below, if (A)
in the Remarketing Agent's judgment any (i) Disclosure Document provided by the
Trust or the Company in connection with the Remarketing or (ii) document
publicly disclosed (including in a filing pursuant to the Exchange Act) by or on
behalf of the Trust or the Company, includes any untrue statement of a material
fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, unless the Remarketing Agent is satisfied in its sole discretion
that such statement or omission has been properly corrected, (B) unless the
Company provides a No Registration Opinion to the Remarketing Agent prior to the
Tender Notification Date, the Company and the Trust (if applicable) shall have
failed to have the Registration Statement declared effective by the Commission
on or prior to the Tender Notification Date and remain effective at least
through and including the Reset Date, provided that the Registration Statement
may be declared effective later than the Tender Notification Date if the Company
provides an opinion of Securities Counsel to the Remarketing Agent to the effect
that such Registration Statement need not become effective until the date the
Initial Remarketing Period is required to commence and the Remarketing Agent
consents to such delay or (C) the Company fails to comply with the requirements
set forth in Section 6(c) of this Agreement. The Remarketing Agent may, but
except as provided in Section 11 shall not be obligated to, purchase tendered
Subject Securities for its own account.
(c) The Remarketing Agent has agreed to use its best efforts to
remarket all Subject Securities tendered for Remarketing on the Tender
Notification Date. The Remarketing Agent will establish, effective beginning on
the Reset Date, (i) the rate (the "Term Rate") per annum at which Interest will
accrue on the Subject Securities, (ii) the term conversion ratio and price,
which determine the number of shares of Common Stock, if any, into which each
Subject Security may be converted (respectively, the "Term Conversion Ratio" and
the "Term Conversion Price") and (iii) the price, manner and time, if any, at
which the Subject Securities may be redeemed (the "Term Call
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Protections" and together with the Term Rate, Term Conversion Ratio and Term
Conversion Price, the "Term Provisions"). The Remarketing Agent will use its
best efforts to establish the Term Provisions most favorable to the Company
consistent with the successful remarketing of Subject Securities tendered
therefor at a price equal to 101% of the aggregate Par Amount thereof; provided
that each Subject Security will have the same Term Provisions; provided that the
Term Provisions may not permit the Company to redeem the Subject Securities for
a price less than the aggregate Par Amount thereof plus any accrued and unpaid
Interest thereon; and, provided further, that if no Subject Security is tendered
for remarketing on the Tender Notification Date, the Remarketing will not take
place (although the Remarketing will not be deemed to have failed), and the
Remarketing Agent will set the Term Provisions in a manner consistent with the
Remarketing Notice that it believes, in its sole discretion, would result in a
price per Subject Security equal to 101% of its Par Amount.
(d) The remarketing process will commence on the first Business Day
following the Tender Notification Date and will be conducted on the following
schedule and in the following manner:
At Least 30 Business Days , But Not More The Trust shall cause a notice (the
Than 90 Business Days Prior to the Final "Remarketing Notice") to be sent to
Reset Date: holders of the Subject Securities
stating whether it intends to remarket
the Subject Securities as securities
which will be convertible into Common
Stock of the Company (a "Convertible
Remarketing") or which will be
nonconvertible (a "Nonconvertible
Remarketing").
The date of the Remarketing Notice Each outstanding Subject Security shall
through the Tender Notification Date: be deemed to have been tendered for
remarketing unless the holder thereof
has given irrevocable notice to the
contrary to the Tender Agent (which the
Tender Agent will promptly remit to the
Remarketing Agent). Such irrevocable
notice, which may be telephonic or
written, must be delivered prior to 5:00
p.m., New York City time, on the Tender
Notification Date. A holder's notice of
an election to retain Subject Securities
must state the number of Subject
Securities to be retained (which must be
all of the Subject Securities
represented by the applicable
certificate, unless such certificate is
a Global Security Certificate), the
number of the certificate representing
the Subject Securities not to be deemed
to have been so tendered and the number
of Subject Securities represented by
such certificate. Any transferee of a
Subject Security for which such notice
has been provided shall be bound
thereby. The failure by a holder of
Subject Securities to give timely notice
of an election to retain all (or, in the
case of a Global Security Certificate,
any part) of such holder's Subject
Securities will consti-
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tute the irrevocable tender for sale in
the Remarketing of all the Subject
Securities it holds. A holder of Subject
Securities which has not duly given
notice that it will not tender and
retain its Subject Securities will cease
to have any further rights with respect
to such Subject Securities upon the
successful remarketing thereof, except
the right of such holder to receive an
amount equal to (i) from the proceeds of
the Remarketing, 101% of the aggregate
liquidation amount thereof, plus (ii)
from the Company, any accrued and unpaid
Interest thereon to (but excluding) the
Reset Date.
Beginning the First Business If any Subject Securities are tendered
Day Following the Tender Notification for remarketing, the Remarketing Agent
Date: will commence a Convertible Remarketing
or a Nonconvertible Remarketing, as the
case may be (in either case, an "Initial
Remarketing"), in accordance with the
terms of this Agreement and pursuant to
the instructions set forth in the
Remarketing Notice. The Remarketing
Agent will determine, and upon request
make available to interested persons
nonbinding indications of, the Term
Provisions based upon then-current
Remarketing Conditions. The Remarketing
Agent will solicit and receive orders
from prospective investors to purchase
tendered Subject Securities. The Initial
Remarketing shall be deemed to have
failed (an "Initial Failed Remarketing")
if (i) despite using its best efforts,
the Remarketing Agent is unable to
establish, prior to the Initial
Remarketing Termination Date, a Term
Rate which is less than or equal to the
Maximum Rate, (ii) the Remarketing Agent
is excused from Remarketing the Subject
Securities because of (a) the failure by
the Company or the Trust to satisfy a
condition in this Agreement or (b) the
occurrence of a Market Event or (iii)
there is no Remarket ing Agent on the
first day of the Initial Remarketing
Period.
Remainder of the Initial Remarketing The Remarketing Agent will continue, if
Period: necessary, using its best efforts to
remarket the Subject Securities tendered
for remarketing as described above,
adjusting the non-binding indications of
the Term Provisions necessary to
establish the Term Provisions most
favorable to the Company consistent with
remarketing all Subject
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Securities tendered therefor at 101% of
the Par Amount, until the Initial
Remarketing is completed or is deemed to
have failed. See the definition of an
Initial Failed Remarketing above.
Promptly upon determination of the Term
Provisions, the Remarketing Agent will
communicate such Term Provisions to the
Tender Agent, which will communicate
such Term Provisions to the Declaration
Trustees (if the Trust has not
dissolved), the Trust (if the Trust has
not dissolved), the Debenture Trustee,
the Paying Agent, the Company and each
holder (if any) which timely elected not
to tender all of its Subject Securities
for remarketing, by delivery of a
written notice or by telephone promptly
confirmed by telecopy or writing.
Beginning the First Business Day If the Initial Remarketing fails because
Following an Initial Failed Remarketing the Remarketing Agent was not able to
(if applicable): establish a Term Rate less than or
equal to the Maximum Rate prior to the
Initial Remarketing Termination Date,
the Remarketing Agent will commence a
second remarketing (the "Final
Remarketing"), which will be a
Convertible Remarketing if the Initial
Remarketing was a Nonconvertible
Remarketing and a Nonconvertible
Remarketing if the Initial Remarketing
was a Convertible Remarketing. The
Remarketing Agent will determine, and
upon request make available to
interested persons nonbinding
indications of, the Term Provisions
based upon then-current Remarketing
Conditions. The Remarketing Agent will
solicit and receive orders from
prospective investors to purchase
tendered Subject Securities. The Final
Remarketing will be deemed to have
failed (a "Failed Final Remarketing") if
(i) despite using its best efforts, the
Remarketing Agent is still not able to
establish a Term Rate less than or equal
to the Maximum Rate prior to the
expiration of the Final Remarketing
Period, or (ii) the Remarketing Agent is
excused from Remarketing the Subject
Securities because of (a) the failure by
the Company or the Trust to satisfy a
condition in this Agreement or (b) the
occurrence of a Market Event.
Remainder of the Final Remarketing The Remarketing Agent will continue, if
Period (if applicable): necessary, to use its best efforts to
remarket the Subject Securities, as
described above,
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adjusting the non-binding indications of the
Term Provisions as necessary to establish the
Term Provisions most favorable to the Company
consistent with remarketing all Subject
Securities tendered therefor at 101% of the
Par Amount until the Final Remarketing is
completed or is deemed to have failed. See
the definition of a Failed Final Remarketing
above. If the Remarketing Agent is able to
establish a Term Rate less than or equal to
the Maximum Rate during the Final Remarketing
Period, it will promptly communicate such
Term Provisions to the Tender Agent, which
will communicate such Term Provisions to the
Declaration Trustees (if the Trust has not
dissolved), the Trust (if the Trust has not
dissolved), the Debenture Trustee, the Paying
Agent, the Company and each holder (if any)
which timely elected not to tender all of its
Subject Securities for remarketing, by
delivery of a written notice or by telephone
promptly confirmed by telecopy or writing.
Reset Date: New holders must deliver the purchase price
for the remarketed securities in same-day
funds to the Remarketing Agent and the
Remarketing Agent will deliver such purchase
price to the Tender Agent (in like funds).
Settlement of transactions in connection with
the remarketing will take place on the third
Business Day following the Reset Date, or
such date as is required by applicable law.
Payments to tendering holders who hold
Subject Securities in the form of one or more
Global Security Certificates will be made in
the manner provided in the Prospectus under
"Description of HIGH TIDES-Form, Book-Entry
Procedures and Transfer." Tendering holders
who hold Subject Securities in certificated
form (other than in the form of Global
Security Certificates) must deliver their
certificates properly endorsed for transfer
to the Tender Agent by 2:30 p.m. on the Reset
Date (or any succeeding date) to receive
payment of the purchase price for their
Subject Securities. Subject to compliance
with the preceding two sentences, the Tender
Agent will pay former holders the proceeds of
the Remarketing of their Subject Securities
by the Remarketing Agent. In the event of a
Failed Final Remarketing, the Remarketing
Agent will establish the terms of the HIGH
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TIDES. The Term Rate shall be a rate
equal to the Treasury Rate plus 6% per
annum. The Term Conversion Price will be
equal to 105% of the average Closing
Price of the Company's Common Stock for
the five (5) consecutive trading days
after the Final Remarketing Period. In
the event of a Failed Final Remarketing,
all outstanding Debentures will be
redeemable by the Company, in whole or
in part, at any time on or after the
third anniversary of the Reset Date at a
redemption price equal to 100% of the
aggregate principal amount thereof, plus
accrued and unpaid interest thereon. On
and after the Reset Date, the terms of
all Subject Securities, whether or not
tendered for remarketing, will be
modified by the Term Provisions, as the
same shall be established by the
Remarketing Agent. If the Subject
Securities are not held by The Depository
Trust Company or its nominee in the form
of one or more Global Security
Certificates, certificates representing
remarketed Subject Securities will be
issued to the purchasers thereof,
irrespective of whether the certificates
formerly representing such Subject
Securities have been delivered to the
Tender Agent.
3. Representations, Warranties, Covenants and Agreements of the Company
and the Remarketing Agent. (a) The Company represents, warrants, covenants and
agrees with the Remarketing Agent as follows:
(i) the Company has full power and authority to enter into
this Agreement and will have full power and authority to enter into any
agreements which it may enter into in connection with the Remarketing;
this Agreement and the transactions contemplated hereby have been, and
each other such agreement and the transactions contemplated thereby
will be, duly authorized, executed and delivered by the Company; and
this Agreement is, and each such other agreement will be at the Reset
Date, a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms;
(ii) the consummation of the transactions contemplated herein
do not now, and the consummation of the transactions contemplated in
any other agreement entered into by the Company in connection with the
Remarketing will not, at the Reset Date, conflict with or constitute a
breach of, or a default under, or result in the creation or imposition
of any lien, charge or other encumbrance upon any property or assets of
the Trust, the Company or any of the Company's subsidiaries pursuant to
any contract, indenture, declaration of trust, deed of trust, mortgage,
loan agreement, note, lease or other instrument or agreement to which
the Trust, the Company or any of its subsidiaries is or will be a party
or by which it or any of them may be bound, or to which any of the
property or assets of any of them is or will be subject, nor will such
actions result in any violation of the provisions of the by-laws of the
Company or any of its subsidiaries or any statute (including the
Securities Act, the Exchange
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Act and state securities laws) or any order, rule or regulation of any
court or governmental agency or body (including the Commission) which
has or will have jurisdiction over the Company or any of its
subsidiaries or any of their material property or assets except for a
conflict, breach, default, lien, charge or encumbrance which could not
reasonably be expected to have a material adverse effect on the
consummation of the transactions contemplated herein or therein;
(iii) all required consents, rulings and approvals of
governmental authorities (other than "Blue Sky" authorities) required
in connection with the execution and delivery by the Company of this
Agreement and any agreement entered into by the Company in connection
with the transactions contemplated by any Disclosure Documents, and the
performance by the Company of its obligations hereunder and thereunder,
have been obtained and are in full force and effect and, at the Reset
Date, will have been obtained and be in full force and effect;
(iv) except as disclosed in the Disclosure Documents, neither
the Company nor any of its subsidiaries is or, at the Reset Date, will
be (i) in violation of its by-laws, (ii) in default in any respect,
and no event has occurred or will have occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained
in any contract, indenture, declaration of trust, deed of trust,
mortgage, loan agreement, note, lease or other instrument or agreement
to which it is or will be bound or to which any of its properties or
assets is or will be subject or (iii) in violation of any law,
ordinance, governmental rule, regulation or court decree to which it or
its property or assets may be subject;
(v) the Disclosure Documents, including as provided in Section
3(x), will not, at the Effective Time and thereafter through and
including the Reset Date, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided that
no representation or warranty is made as to information contained in or
omitted from the Disclosure Documents in reliance upon and in
conformity with written information furnished to the Company by the
Remarketing Agent specifically for inclusion therein;
(vi) the financial statements of the Company contained (or
incorporated by reference) in the Disclosure Documents will present
fairly the financial position of the Company as of the dates indicated,
and the results of operations and changes in financial position of the
Company for the periods covered, in conformity with generally accepted
accounting principles applied on a consistent basis, except as
otherwise set forth therein;
(vii) after the date of the most recent financial statements
of the Company contained (or incorporated by reference) in the
Disclosure Documents, there will not have been any material adverse
change in the condition (financial or other), stockholders' equity,
results of operations or business of the Company and its subsidiaries,
except as disclosed in the Disclosure Documents;
(viii) except as disclosed in the Disclosure Documents, there
will be no legal or governmental proceedings pending at the Reset Date
to which the Company or any of its subsidiaries is a party or of which
any material property or assets of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, might have a
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material adverse effect on the condition (financial or other),
stockholders' equity, results of operations or business of the Company
and its subsidiaries, taken as a whole;
(ix) any description of a contract, indenture, declaration of
trust, deed of trust, mortgage, loan agreement, note, lease or other
instrument or agreement contained in the Disclosure Documents will be,
at the Effective Time and thereafter through and including the Reset
Date, true, complete and correct; and
(x) If the Registration Statement is filed, the Registration
Statement at the Effective Time will conform to the requirements of the
Securities Act and the Rules and Regulations and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, as of the Effective Time
and thereafter through and including the Reset Date, will conform to
the requirements of the Securities Act and the Rules and Regulations
and will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided that no representation or warranty is made as
to information contained in or omitted from any Preliminary Prospectus,
the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company by the
Remarketing Agent specifically for inclusion therein.
(b) The Remarketing Agent represents, warrants, covenants and agrees
with the Company that if it shall not have received a No Registration Opinion
and the Registration Statement shall not be effective on the Tender Notification
Date (or such later date as may be provided in Section 2(b)), the Remarketing
Agent will offer and sell the Subject Securities only in compliance with the
federal and state securities laws applicable to unregistered sales of securities
in effect at the time of the Remarketing.
4. Fees and Expenses. (a) The Company agrees to pay to the Remarketing
Agent upon settlement of the transactions contemplated by the Remarketing (i) as
compensation for its services hereunder, a fee equal to 1% of the aggregate Par
Amount of outstanding Subject Securities on the Reset Date upon settlement of
the transactions contemplated by the Remarketing, plus (ii) all out-of-pocket
expenses reasonably incurred by the Remarketing Agent in connection with the
performance of its duties; provided that if both the Initial Remarketing and the
Final Remarketing fail, the Company shall not be required to pay any fees to, or
reimburse any out-of-pocket expenses of, the Remarketing Agent.
(b) The Remarketing Agent acknowledges and agrees that the performance
of its duties hereunder will be without charge to holders or purchasers of the
Subject Securities other than the Company.
5. Broker-Dealer Participation. The Remarketing Agent shall enter into
Broker-Dealer Agreements with all broker-dealers ("Broker-Dealers"), if any,
which it selects to have participate in the remarketing process; provided that
(i) such Broker-Dealers agree to comply with the terms of this Agreement,
including the terms of Section 3(b) of this Agreement, (ii) any fees or
commissions paid to the Broker- Dealers shall be paid by the Remarketing Agent
out of the fees it is paid pursuant to Section 4(a), and (iii) the Remarketing
Agent agrees to provide to the Company an executed copy of each Broker-Dealer
Agreement. None of the Remarketing Agent, the Trust and the Company shall be
responsible for the out-of-pocket expenses of such Broker-Dealers or for
ensuring compliance by such Broker-Dealers with the terms of
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this Agreement (except, with respect to the Remarketing Agent, as specifically
set forth in the Broker-Dealer Agreement).
6. Disclosure Documents and Other Information. (a) If (i) the
Registration Statement is not required to be filed with the Commission pursuant
to the provisions of Section 2(b) of this Agreement and (ii) the Remarketing
Agent determines that it is necessary or desirable to use a disclosure document
in connection with the performance of its obligation to remarket the Subject
Securities, the Remarketing Agent will notify the Company and the Company will
provide to the Remarketing Agent prior to the Tender Notification Date at the
Company's expense a disclosure document or documents reasonably satisfactory to
the Remarketing Agent and its counsel in respect of the Subject Securities
(collectively, and including any documents or other information incorporated by
reference therein, the "Nonregistered Offering Documents"). The Company will
supply the Remarketing Agent at the Company's expense with such number of copies
of the Disclosure Documents as the Remarketing Agent reasonably requests from
time to time. The Company will supplement and amend the Disclosure Documents so
that at all times they will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements in the
Disclosure Documents, in light of the circumstances under which they were made,
not misleading.
(b) The Company and the Trust each agrees to furnish to the Remarketing
Agent (i) as promptly as practicable after they are available, all regular and
periodic reports, if any, which the Company or the Trust files with the
Commission under the Exchange Act and all reports which the Company or the Trust
provides generally to holders of its publicly held securities and (ii) from time
to time, such other information concerning the Company and the Trust as the
Remarketing Agent may reasonably request.
(c) The Company will provide the Remarketing Agent with such
certificates, opinions of counsel, accountants' letters and other support for
the information contained in any Disclosure Documents as the Remarketing Agent
and its counsel may reasonably request.
(d) If the Registration Statement is filed with the Commission, the
Company agrees that it will:
(i) prepare the Registration Statement in conformity with the
requirements of the Securities Act and the Rules and Regulations;
(ii) cause the Registration Statement to become effective
prior to the Tender Notification Date (or such later date as may be
permitted in accordance with the provisions of Section 2(b));
(iii) prepare the Prospectus in a form approved by the
Remarketing Agent and file the Prospectus in accordance with Rule
424(b) (or any successor applicable rule) under the Securities Act and
Rule 430A(a)(3) (or any successor applicable rule) under the Securities
Act; make no further amendment or any supplement to the Registration
Statement or to the Prospectus except as permitted herein; advise the
Remarketing Agent, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and furnish the Remarketing Agent with copies
thereof; advise the Remarketing Agent, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or the
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Prospectus, of the suspension of the qualification of the securities
covered by such Registration Statement for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or the Prospectus or for
additional information; and in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, promptly use its reasonable best efforts to obtain its
withdrawal;
(iv) furnish promptly to the Remarketing Agent and to counsel
for the Remarketing Agent a signed copy of the Registration Statement
as originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits filed
therewith;
(v) deliver promptly to the Remarketing Agent such number of
the following documents as the Remarketing Agent shall reasonably
request: (1) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits) and (2) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus; and, if the
delivery of a prospectus is required at any time after the Effective
Time in connection with the offering or sale of the securities covered
by the Registration Statement and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary to amend or supplement the
Prospectus in order to comply with the Securities Act, notify the
Remarketing Agent and, upon its request, prepare and furnish without
charge to the Remarketing Agent as many copies as the Remarketing Agent
may from time to time reasonably request of an amended or supplemented
Prospectus which will correct such statement or omission or effect such
compliance;
(vi) file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Remarketing
Agent, be required by the Securities Act or requested by the
Commission;
(vii) prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 (or any applicable successor rule) of
the Rules and Regulations, furnish a copy thereof to the Remarketing
Agent and counsel for the Remarketing Agent;
(viii) as soon as practicable after the Effective Time, make
generally available to the Company's security holders and deliver to
the Remarketing Agent an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
(or any applicable successor section) of the Securities Act and the
Rules and Regulations (including, at the option of the Company, Rule
158 (or any applicable successor rule));
(ix) promptly from time to time take such action as the
Remarketing Agent may request to qualify the securities covered by the
Registration Statement for offering and sale under the securities laws
of such jurisdictions
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as the Remarketing Agent may request and to take all steps necessary to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Subject Securities; provided,
however, that in connection therewith the Company will not be required
to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not so qualified;
and
(x) use its best effort to have the Subject Securities listed
on any securities exchange or quoted in any automated inter-dealer
quotation system reasonably requested by the Remarketing Agent.
7. Indemnification. (a) The Company will indemnify and hold harmless
the Remarketing Agent against any losses, claims, damages or liabilities, joint
or several, to which the Remarketing Agent may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Disclosure Document, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and will
reimburse the Remarketing Agent for any legal or other expenses reasonably
incurred by the Remarketing Agent in connection with investigating or defending
any such loss, claim, damage liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any Disclosure Document in reliance upon and in conformity with
written information furnished to the Company by the Remarketing Agent
specifically for use therein.
(b) The Remarketing Agent will indemnify and hold harmless the Company
and the Trust against any losses, claims, damages or liabilities to which the
Company or the Trust may become subject, under the Securities Act or the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Disclosure Documents, or any amendment or supplement thereto, or arise out
of or are based upon the omission or the alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnish to the Company or the Trust by the
Remarketing Agent specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company or the Trust in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such action
is brought against any indemnified party and it notifies the indemnifying party
of the commencement thereof, the
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indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Remarketing Agent on the other from the Remarketing of the
Subject Securities in accordance with this Agreement or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Remarketing Agent on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Remarketing Agent on the other shall be
deemed to be in the same proportion as the aggregate outstanding Liquidation
Amount (if the Subject Securities are HIGH TIDES) or principal amount (if the
Subject Securities are Debentures) bear to the fees received by the Remarketing
Agent from the Company under this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Remarketing Agent and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), the Remarketing Agent shall not be
required to contribute any amount in excess of the amount by which the aggregate
outstanding Liquidation Amount (if the Subject Securities are HIGH TIDES) or
principal amount (if the Subject Securities are Debentures) of the Subject
Securities remarketed exceeds the amount of any damages which the Remarketing
Agent has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Remarketing Agent within the meaning of the Securities Act or the Exchange Act;
and the obligations of the Remarketing Agent under this Section shall be in
addition to any liability which the Remarketing Agent may otherwise have and
shall extend, upon the
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same terms and conditions, to each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act.
8. Remarketing Agent's Liabilities. The Remarketing Agent shall incur
no liability to the Company, the Debenture Trustee, the Property Trustee, the
Administrative Trustees, the Delaware Trustee, the Tender Agent or any holder of
Subject Securities for its actions as Remarketing Agent pursuant to the terms
hereof and of the Trust Agreement or Indenture without gross negligence or in
the absence of wilful misconduct. The undertaking of the Remarketing Agent to
remarket any Subject Securities shall be on a "best efforts" basis.
9. Termination. This Agreement will terminate upon the earliest to
occur of the following: (i) the written agreement of all parties hereto; (ii)
the date that no Debenture is outstanding; and (iii) the day immediately
following the Reset Date. The provisions of Sections 7, 8, 11 and 12 hereof will
continue in effect as to actions prior to the date of termination, and each
party will pay to the others any amounts owing at the time of termination.
10. Resignation and Removal; Appointment of Successor. (a) The
Remarketing Agent may resign at any time hereunder by giving at least 30 days'
written notice thereof to the Company and the Tender Agent. No successor need
have accepted its appointment for such resignation to be effective.
(b) The Remarketing Agent may be removed at any time for Cause by the
holders of a majority in aggregate Par Amount of the Subject Securities
outstanding, by written notice to the Remarketing Agent, the Tender Agent and
the Company. No successor need have accepted its appointment for such removal to
be effective.
(c) If the Remarketing Agent resigns or is removed in accordance with
Section 10(b), the Company will use its best efforts to appoint as the successor
Remarketing Agent hereunder an investment bank, broker, dealer or other
organization which, in the judgment of the Company, is qualified to remarket the
Subject Securities and to establish the Term Provisions. If the Company fails to
so appoint a successor Remarketing Agent reasonably promptly, in light of the
proximity of the Tender Notification Date, or if such successor fails to accept
such appointment, the holders of not less than 25% in aggregate Par Amount of
the Subject Securities outstanding, by written notice to the Tender Agent and
the Company, may appoint a successor Remarketing Agent which is an investment
bank, broker, dealer or other organization qualified to remarket the Subject
Securities and to establish the Term Provisions; provided that for purposes of
determining the holders of not less than 25% in aggregate Par Amount of the
Subject Securities outstanding, Subject Securities owned by the Company, the
Trust or any trustee or administrator of the Trust or any affiliate of any of
the foregoing shall be disregarded and deemed not to be outstanding.
(d) A successor Remarketing Agent shall accept its appointment by
executing and delivering a written instrument of acceptance to the Tender Agent
and the Company.
(e) The provisions of Sections 7, 8, 11 and 12 hereof will continue in
effect as to actions of the Remarketing Agent prior to the date of resignation
or removal, and the Remarketing Agent will pay to and have the right to receive
from the other parties hereto any amounts owing at the time of such event.
(f) The Tender Agent shall provide written notice of each resignation
and each removal of the Remarketing Agent and each appointment of a successor
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Remarketing Agent and such successor's acceptance thereof by first-class mail,
postage prepaid, to the holders of the Subject Securities as their names and
addresses appear in the applicable register.
(g) Any corporation or other entity into which the Remarketing Agent
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Remarketing Agent may be a party, or any corporation succeeding to all or
substantially all of the business of the Remarketing Agent, shall be the
successor of the Remarketing Agent hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
11. Dealing in Subject Securities by Remarketing Agent. The Remarketing
Agent, either as principal or agent, may buy, sell, own, hold and deal in
Subject Securities, and may join in any action which any owner of the Subject
Securities may be entitled to take with like effect as if it did not act in any
capacity hereunder. Except as provided in the next succeeding sentence, the
Remarketing Agent is under no obligation at any time to purchase Subject
Securities. If the Term Rate is established by the Remarketing Agent but on the
Reset Date the Remarketing Agent is unable to consummate the sale of one or more
Subject Securities tendered for remarketing, the Remarketing Agent shall
purchase such Subject Securities on the Reset Date for 101% of their aggregate
Par Amount. The Remarketing Agent agrees that the purchase of Subject Securities
for its own account or the account of its affiliates will be upon terms no more
favorable to it than those pertaining to the purchase of Subject Securities in
the market (which shall be determined by the Remarketing Agent in its sole
discretion) in general at the time of such purchase and that neither it nor its
affiliates will elect to retain Subject Securities on the Reset Date if the
Subject Securities could be remarketed pursuant to this Agreement on terms more
favorable to the Trust or the Company than the terms upon which the Remarketing
Agent or such affiliates would continue to hold it. The Remarketing Agent,
either as principal or agent, may also engage in or be interested in any
financial or other transaction with the Trust or the Company and may act as
depository, trustee or agent for any committee or body of owners of Subject
Securities or other obligations of the Trust or the Company as freely as if it
had no obligations hereunder or under the Trust Agreement or Indenture.
12. Records. The Remarketing Agent agrees to keep books and records
relating to its activities as Remarketing Agent in accordance with standard
industry practice.
13. Purchase and Sales by Company. While the Company and its affiliates
may from time to time purchase, hold and sell Subject Securities, the Company
and the Remarketing Agent acknowledge that neither the Company nor any affiliate
of the Company may acquire or bid to acquire Subject Securities on the Reset
Date or submit orders in the Remarketing. The Remarketing Agent agrees that it
will not knowingly remarket any Subject Securities to the Company or any of its
affiliates.
14. Communication of Remarketing Conditions. The Remarketing Agent
agrees, upon request from time to time by any holder of Subject Securities and
to the extent the Remarketing Agent deems advisable, to advise such holder of
current Remarketing Conditions.
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15. Notices. Unless otherwise provided herein, all notices, requests,
demands and formal actions hereunder shall be in writing and mailed or sent by
facsimile transmission or delivered, as follows:
If to the Company:
Calpine Corporation
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Secretary
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Tender Agent:
The Bank of New York, as Tender Agent
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Trust:
c/o Calpine Corporation
Attention: Secretary
00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Remarketing Agent:
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Transactions Advisory Group - Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Each of the above parties may, by written notice given hereunder to the
others, designate any further or different addresses or telecopier numbers to
which subsequent notices, certificates, requests or other communications shall
be sent. In addition, the parties hereto may agree to any other means by which
subsequent notices, certificates, requests or other communications may be sent.
16. Successors and Assigns. This Agreement shall be binding upon, inure
to the benefit of and be enforceable by, the respective successors and assigns
of the Company, the Trust, the Tender Agent, the Remarketing Agent and the
holders of the Subject Securities.
17. The Tender Agent. In serving as the Tender Agent hereunder, the
Debenture Trustee shall be entitled to the protections and benefits of Sections
6.01(d), 6.03, 6.06 and 12.07 of the Indenture and the Property Trustee shall be
entitled to the protections and benefits of Sections 3.09, 3.10 and 10.04 of the
Trust Agreement.
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18. Entire Agreement. Except as otherwise provided herein, this
Agreement contains the entire agreement between the parties relating to the
subject matter hereof, and there are no other representations, endorsements,
promises, agreements or understandings, oral, written or inferred, among the
parties.
19. Descriptive Headings. The descriptive headings of the several
sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
20. Amendment; Waiver. (a) This Agreement shall not be deemed or
construed to be modified, amended, rescinded, canceled or waived, in whole or in
part, except by a written instrument signed by a duly authorized representative
of each of the Company, the Tender Agent, the Administrative Trustees and the
Remarketing Agent.
(b) Failure of any party to exercise any right or remedy under this
Agreement in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
21. Severability. If any clause, provision or section of this Agreement
shall be ruled invalid or unenforceable by any court of competent jurisdiction,
the invalidity or unenforceability of such clause, provision or section shall
not affect any of the remaining clauses, provisions or sections hereof.
22. Execution in Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed an original and all of which
shall constitute but one and the same instrument. It shall not be necessary in
making proof of this Agreement to produce or account for more than one such
counterpart signed by the party against which enforcement of this Agreement is
sought.
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23. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES HERETO SHALL BE GOVERNED BY, THE
LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
CALPINE CORPORATION
By:
----------------------------------------
Name:
Title:
CALPINE CAPITAL TRUST,
By:
----------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Administrative Trustee
By:
----------------------------------------
Name: Xxx X. Xxxxxx
Title: Administrative Trustee
By:
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Administrative Trustee
THE BANK OF NEW YORK, as Tender Agent,
By:
----------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION,
By:
----------------------------------------
Name:
Title:
23
