Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, Banc of America Securities LLC hereby accepts appointment as Remarketing Agent, for the purpose of (i) Remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents. (b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August 16, 2008 (the “Initial Remarketing Date”), the Remarketing Agent shall use commercially reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”) the Remarketed Senior Notes, at a price (the “Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price. (c) In the case of a Failed Initial 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 Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “Final Remarketing”) the Remarketed Senior Notes at a price (the “Final Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the case of the Initial Remarketing, and at least 100% of the aggregate principal amount of the Remarketed Senior Notes, in the case of the Final Remarketing. (d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, 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 Remarketing Agent will enable it to remarket all of the Remarketed Senior Notes at the Remarketing Price or Final Remarketing Price, as the case may be, in such Remarketing. (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. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfied, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, by telephone, the Depositary, the Purchase Contract Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders. (g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone: (i) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and (ii) 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; and (iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third 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 Agent 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. (h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 of the Pledge Agreement. (i) 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 Agent conducts a Remarketing pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price 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 Agent as and when required. (j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Notes for Remarketing.
Appears in 3 contracts
Sources: Remarketing Agreement (Public Service Co of New Mexico), Remarketing Agreement (Public Service Co of New Mexico), Remarketing Agreement (Public Service Co of New Mexico)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC the Remarketing Agent as the exclusive Remarketing Agent, and, subject Agent with respect to the terms and conditions set forth herein, Banc of America Securities LLC hereby accepts appointment as Remarketing Agent, for the purpose of (i) Remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract and Pledge Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless Pursuant to this Agreement, the Remarketing Agent agrees, unless a Special Tax Event Redemption has occurred prior to such datedate and subject to the terms and conditions set forth herein, to use its reasonable efforts to remarket, (i) on each Remarketing Date during the third Business Three-Day immediately preceding August 16Remarketing Period selected by the Company, 2008 if any, during the Period for Early Remarketing and (ii) on each Remarketing Date during the “Initial Final Three-Day Remarketing Period if no Successful Remarketing has occurred prior to the Final Three-Day Remarketing Period, in each case, in accordance with the provisions of the Senior Notes and the Indenture, until the Senior Notes have been successfully remarketed on a Remarketing Date”), the Collateral Agent or the Custodial Agent shall have notified the Remarketing Agent that the Senior Notes have been tendered for, or otherwise are to be included in, the Remarketing, at a price per $1,000 principal amount of Senior Notes such that the aggregate price at which such Senior Notes are being remarketed will equal approximately (i) if the related Reset Date is not the Purchase Contract Settlement Date, the Remarketing Price, or (ii) if the related Reset Date is the Purchase Contract Settlement Date, the Contract Settlement Price. Notwithstanding the preceding sentence, the Remarketing Agent shall use commercially reasonable efforts to not remarket (based on any Senior Notes for a price less than the Reset Rate) (the “Initial Remarketing”) the Remarketed Senior Notes, at a price (the “Remarketing Minimum Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “Final Remarketing”) the Remarketed Senior Notes at a price (the “Final Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of necessary for 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 will be considered successful and no further attempts will be made to have an aggregate price (i) if the resulting proceeds are at least proposed Reset Date is not the Purchase Contract Settlement Date, equal to 100% of the sum of the Remarketing Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in or (ii) if the case of proposed Reset Date is the Initial RemarketingPurchase Contract Settlement Date, and at least equal to 100% of the aggregate principal amount of the such Remarketed Senior Notes, in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, 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 Remarketing Agent will enable it to remarket all of the Remarketed Senior Notes at the Remarketing Price or Final Remarketing Price, as the case may be, in such Remarketing.
(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. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfied, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, by telephone, the Depositary, the Purchase Contract Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and
(ii) 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; and
(iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third 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 Agent shall also, if required by the Securities Act or the rules and regulations promulgated thereunder, deliver not be obligated to each purchaser a Prospectus in connection with the Remarketing.
(h) After deducting remarket any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent if a condition precedent set forth herein or in accordance with Sections 5.07 and 7.05 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract this 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 Purchase Contract Agreement and Sections 5.07 and 7.05 of the Pledge Agreement.
(i) 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 Agent conducts a Remarketing pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) is not fulfilled or if the Remarketing Agent is able to find a purchaser or purchasers for Remarketed of such 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 Agent as and when requiredwould violate applicable law.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Notes for Remarketing.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, Banc of America Securities LLC hereby accepts appointment as Remarketing Agent, for the purpose of (i) Remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August February 16, 2008 2007 (the “Initial Remarketing Date”"INITIAL REMARKETING DATE"), the Remarketing Agent shall use commercially reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”"INITIAL REMARKETING") the Remarketed Senior Notes, at a price (the “Remarketing Price”"REMARKETING PRICE") equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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”"FINAL REMARKETING DATE"), the Remarketing Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “Final Remarketing”"FINAL REMARKETING") the Remarketed Senior Notes at a price (the “Final Remarketing Price”"FINAL REMARKETING PRICE") equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, ; in the case of the Initial Remarketing, and at least 100% of the aggregate principal amount of the Remarketed Senior Notes, in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, that the Senior Notes should bear (the “Reset Rate”"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 Remarketing Agent will enable it to remarket all of the Remarketed Senior Notes at the Remarketing Price or Final Remarketing Price, as the case may be, in such Remarketing.
(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. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, by telephone, the Depositary, the Purchase Contract Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and;
(ii) 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; and
(iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third 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 Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 of the Pledge Agreement.
(i) 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 Agent conducts a Remarketing pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Notes for Remarketing.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The On or before the 20th Business Day prior to the Initial Remarketing Date (the "Appointment Date"), the Company hereby appoints Banc shall send written notice appointing any of America Securities LLC UBS, BAS or JPMorgan as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, Banc of America Securities LLC hereby accepts appointment as Remarketing Agent, for the purpose of (i) Remarketing remarketing the Remarketed Senior Subordinated Notes on behalf of the holders Holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Subordinated Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents; provided that if the Company fails to appoint a Remarketing Agent pursuant to this Section 2(a) by the Appointment Date, the Company shall be deemed to have appointed UBS as the Remarketing Agent. Each of UBS, BAS and JPMorgan hereby agree that if the Company chooses to appoint it as the Remarketing Agent, it shall, subject to the terms and conditions set forth herein, accept such appointment by the Company as the exclusive Remarketing Agent.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August 16________ ___, 2008 ___ (the “"Initial Remarketing Date”"), the Remarketing Agent shall use commercially its reasonable efforts to remarket (based on the Reset Rate) (the “"Initial Remarketing”") the Remarketed Senior Subordinated Notes, at a price (the “"Remarketing Price”) "), based on the Reset Rate, equal to approximately 100.25______% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Subordinated Notes Purchase Price.
(c) In the case of a Failed Initial 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 Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “"Final Remarketing”") the Remarketed Senior Subordinated Notes at a price (the “"Final Remarketing Price”) "), based on the Reset Rate, equal to approximately 100.25______% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the aggregate principal amount of the Remarketed Senior Subordinated Notes being remarketed in such Final Remarketing. 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 100______% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Subordinated Notes Purchase Price, in the case of the an Initial Remarketing, and at least 100Remarketing _______% of the aggregate principal amount of the Remarketed Senior Notes, Subordinated Notes in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, that the Senior Subordinated Notes should bear (the “"Reset Rate”") in order for the Remarketed Senior Subordinated 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 Remarketing Agent will enable it to remarket all of the Remarketed Senior Subordinated Notes at the Remarketing Price or Final Remarketing Price, as the case may be, in such Remarketing, provided that such rate shall not (i) be less than the Coupon Rate set forth in the Indenture or (ii) exceed the maximum interest rate permitted by law.
(e) In the event of a Failed Remarketing Remarketing, or if no Senior Subordinated Notes are included in Corporate Units, Units and if none of the holders Holders of the Separate Senior Subordinated Notes elect to have Senior Subordinated Notes be remarketed in such Remarketing, the applicable interest rate on the Senior Subordinated Notes will not be reset and will continue to be the Coupon Rate set forth in the Indenture as supplemented from time to timeIndenture.
(f) If, by 4:00 p.m. (p.m., New York City time) , on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Subordinated Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, advise by telephone, telephone the Depositary, the Purchase Contract Agent and the Company, and return the Remarketed Subordinated 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 Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (p.m., New York City time) , on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Subordinated Notes sold in such Remarketing; and;
(ii) each purchaser (or the Depositary Participant thereof) of Remarketed Senior Subordinated Notes of the Reset Rate and the number of Remarketed Senior Subordinated Notes such purchaser is to purchase; and
(iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day business day immediately following the date of such Successful Remarketing in same-same day funds against delivery of the Remarketed Senior Subordinated Notes purchased through the facilities of the Depositary. The Remarketing Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Subordinated Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 4.07 and 7.05 6.03 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract Agreement and (ii) with respect to the Separate Senior Subordinated Notes, shall be paid to the Custodial Agent for payment to the holders Holders of such Separate Senior Subordinated Notes in accordance with Section 5.02 of the Purchase Contract Agreement and Sections 5.07 and 7.05 of the Pledge Agreement.
(i) 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 Agent conducts a Remarketing pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Notes for Remarketing.Section 6.03
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC the Remarketing Agents as the exclusive remarketing agents with respect to the Initial Remarketing Agentand M▇▇▇▇▇▇ Lynch, andPierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated 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 terms and conditions set forth herein, Banc of America Securities LLC hereby accepts appointment as Remarketing Agent, such appointments for the purpose of (i) Remarketing remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent Agents in the Transaction Documents.
(b) Unless a Special Event Redemption has occurred prior to such dateOn May 11, on the third Business Day immediately preceding August 16, 2008 2006 (the “Initial Remarketing Date”), each of the Remarketing Agent Agents shall use commercially its reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”) the Remarketed Senior Notes, at a price (the “Remarketing Price”) ), based on the Reset Rate, equal to approximately 100.25100.50% (or, if the Remarketing Agent is Agents are unable to remarket the Remarketed Senior Notes at such a rateprice, at a rate price below 100.25100.50% in the discretion of the Remarketing AgentRepresentative, but in no event less than 100.00100%, net of any Remarketing Fee and any other fees and commissions) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial The 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 Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “Final Remarketing”) the Remarketed Senior Notes at a price (the “Final Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the case of the Initial Remarketing, and at least 100% of the aggregate principal amount of the Remarketed Senior Notes, in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent 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 Senior Notes should bear (the “Reset Rate”) in order for the Remarketed Senior Notes of the Normal Unit holders 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 Remarketing Agent Agents will enable it 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.
(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, provided that such rate shall not exceed the applicable maximum 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 timepermitted by law.
(fd) If, by 4:00 p.m. (New York City time) on the applicable Initial Remarketing Date, (i) the Remarketing Agent is Agents are unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a failed remarketing (“Failed Remarketing Remarketing”) shall be deemed to have occurred, and the Remarketing Agent Representative shall so 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 Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate HoldersRepresentative.
(ge) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Initial Remarketing Date, the Remarketing Agent Representative shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent Agent, the Indenture Trustee and the Company of the Reset Rate determined by the Remarketing Agent Agents in such Remarketing and the number aggregate principal amount of Remarketed Senior Notes sold in such Remarketing; and;
(ii) each purchaser (or the Depositary Participant thereof) of Remarketed Senior Notes of the Reset Rate and the number aggregate principal amount of Remarketed Senior Notes such purchaser is to purchase; and
(iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day immediately following date on which such Remarketing is to be settled, which shall be no later than the date of such Successful Remarketing Settlement Date, in same-same day funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary. The Remarketing Agent 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.
(hiv) if the Company purchases any Remarketed Senior Notes in the Initial Remarketing, the Company agrees to pay to the Representative, on behalf of the several Remarketing Agents, the purchase price for such Remarketed Senior Notes on the Remarketing Settlement Date, in same day funds, against delivery of Remarketed Senior Notes so purchased.
(f) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Pledged Senior Notes that are components of the Corporate UnitsNotes, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 Section 7.06 of the Pledge Agreement, as the case may be, Agreement and Section 5.02 5.02(a)(i) of the Purchase Contract Agreement and (ii) with respect to the any Separate Senior NotesNotes included in the Remarketing, shall be paid to the Custodial Agent for payment to the holders of such Separate Senior Notes in accordance with Section 5.02 5.02(a)(i) of the Purchase Contract Agreement and Sections 5.07 Section 5.07(c) and 7.05 Section 7.06 of the Pledge Agreement.
(ig) The right of each holder of Separate Senior Notes or Corporate Normal Units to have Remarketed Senior Notes remarketed and sold on any the Initial Remarketing Date shall be subject to the conditions that (i) the Remarketing Agent conducts a Remarketing pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent is 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 (ivii) such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agent Agents as and when requiredrequired and (iii) the Remarketing is settled in accordance with this Agreement.
(jh) It is understood and agreed that the Remarketing Agent Agents shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Remarketed Senior Notes for Remarketing or to otherwise expend or risk its or their own funds or incur or to be exposed to financial liability in the performance of its or their duties under this Agreement. Subject to Section 2(e)(iv) above, and without limitation of neither the foregoing, Company nor the Remarketing Agent Agents shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Remarketed Senior Notes for Remarketing.
Appears in 1 contract
Sources: Remarketing Agreement (Hartford Financial Services Group Inc/De)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC Morgan Stanley & Co. Incorporated as the exclusive Remarketing Agent, and▇▇▇, subject to ▇u▇▇▇▇▇ ▇o the terms and conditions set forth herein, Banc of America Securities LLC Morgan Stanley & Co. Incorporated hereby accepts appointment as Remarketing AgentRemark▇▇▇▇▇ A▇▇▇▇, for ▇or the purpose of (i) Remarketing remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August 16, 2008 2006 (the “Initial Remarketing Date”"INITIAL REMARKETING DATE"), the Remarketing Agent shall use commercially its reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”"INITIAL REMARKETING") the Remarketed Senior Notes, at a price (the “Remarketing Price”) "REMARKETING PRICE"), based on the Reset Rate, equal to approximately 100.25100.50% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25100.50% in the discretion of the Remarketing Agent, but in no event less than 100.00100%, net of any Remarketing Fee and any other fees and commissions) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 September 16, 2006 (the “Final Remarketing Date”"SECOND REMARKETING DATE"), the Remarketing Agent shall use its commercially reasonable efforts to remarket (based the "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 Reset Rate) third Business Day immediately preceding October 16, 2006 (the “Final Remarketing”"THIRD REMARKETING DATE"), the Remarketing Agent shall use its 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 Agent shall use its reasonable efforts to remarket (the "FINAL REMARKETING") the Remarketed Senior Notes at a price (the “Final Remarketing Price”) "FINAL REMARKETING PRICE"), based on the Reset Rate, equal to approximately 100.25100.50% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25100.50% in the discretion of the Remarketing Agent, but in no event less than 100.00100%, net of any Remarketing Fee and any other fees and commissions) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% (net of any Remarketing Fee and any other fees and commissions) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the case of a Remarketing other than the Initial Final Remarketing, and at least or 100% (net of any Remarketing Fee and any other fees and commissions) of the aggregate principal amount of the Remarketed Senior Notes, Notes in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, that the Senior Notes should bear (the “Reset Rate”"RESET RATE") in order for the Remarketed Senior Notes of the Corporate Unit holders 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 Remarketing Agent will enable it 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 Indenture, as supplemented from time to time.
(f) If, by 4:00 p.m. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, by telephone, 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 Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and;
(ii2) 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; and
(iii3) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day business day immediately following the date of such Successful Remarketing in same-same day funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary. The Remarketing Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 7.06 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 Section 7.06 of the Pledge Agreement.
(i) 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 Agent conducts 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 Agent is 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Remarketed Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Neither the Company nor the Remarketing Agent shall similarly not be obligated in any case to provide funds to make payment upon tender of the Remarketed Senior Notes for Remarketing.
Appears in 1 contract
Sources: Remarketing Agreement (Hartford Financial Services Group Inc/De)
Appointment and Obligations of the Remarketing Agent. (a) The Company Company, the Purchase Contract Agent, the LLC and the Trust hereby appoints Banc of America Securities LLC appoint ____________ as the exclusive Remarketing Agent (the "Remarketing Agent, and, subject to the terms ") and conditions set forth herein, Banc of America Securities LLC ________________ hereby accepts appointment as Remarketing Agent, for the purpose of (i) the remarketing ("Remarketing") of the Trust Preferred Securities pursuant to the remarketing procedures, as set forth in the Purchase Contract Agreement, the Pledge Agreement, the LLC Agreement and the Trust Agreement, as the case may be (such procedures, the "Remarketing the Remarketed Senior Notes Procedures"), on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures and the Trust Agreement, all in accordance with and pursuant to the Remarketing Procedures and the Trust Agreement.
(b) Unless a Special Event Redemption has occurred prior The Remarketing Agent agrees (i) to use its commercially reasonable best efforts to remarket the Remarketed Trust Preferred Securities (as defined below) tendered or deemed tendered to the Remarketing Agent in the Remarketing, (ii) to notify the Company, the LLC, the Trust, the Depositary and the Indenture Trustee promptly of the Reset Rate (as defined in the Trust Agreement) in accordance with the Trust Agreement and (iii) to establish the Reset Rate and carry out such dateother duties as are assigned to the Remarketing Agent in the Remarketing Procedures, on all in accordance with the provisions of the Remarketing Procedures and the Trust Agreement.
(c) On the third Business Day immediately preceding August 16October 15, 2008 2004 (the “Initial "Remarketing Date”), the Remarketing Agent shall use commercially reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”) the Remarketed Senior Notes, at a price (the “Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 Agent shall use its commercially reasonable best efforts to remarket (based on the Reset Rate) (the “Final Remarketing”) the Remarketed Senior Notes remarket, at a price (the “Final Remarketing Price”) equal to approximately at least 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing AgentValue, but in no event less than 100.00%) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the case of the Initial Remarketing, and at least 100% of the aggregate principal amount of the Remarketed Senior Notes, in the case of the Final RemarketingTrust Preferred Securities tendered or deemed tendered for purchase.
(d) In connection with each RemarketingIf, as a result of the efforts described in Section 1(b), the Remarketing Agent determines that it will be able to remarket all Remarketed Trust Preferred Securities tendered or deemed tendered for purchase at a price of 100.25% of the Remarketing Value prior to 4:00 p.m., New York City time, on the Remarketing Date, the Remarketing Agent shall determine, in consultation with (i) determine the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, Reset Rate 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 Remarketing Agent will enable it to remarket all of Remarketed Trust Preferred Securities tendered or deemed tendered for Remarketing, but in no event will the Remarketed Senior Notes at Reset Rate be lower than 5.11% (the initial rate), and (ii) commit to purchase on a third-trading day settlement basis, and on the third Trading Day following the Remarketing Price or Final Remarketing PriceDate, shall purchase, the Agent-purchased Treasury Consideration (as defined in the case may be, in such RemarketingPurchase Contract Agreement).
(e) In If, notwithstanding the event of a Failed Remarketing or if no Senior Notes are included efforts described in Corporate Units, and if none of the holders of the Separate Senior Notes elect to have Senior Notes be remarketed in such RemarketingSection 1(b), the applicable interest rate Remarketing Agent cannot remarket the Trust Preferred Securities on the Senior Notes will not be reset and Remarketing Date, the Remarketing Agent will continue to be attempt to remarket the Coupon Rate set forth Trust Preferred Securities on one or more occasions until the Purchase Contract Date (as defined in the Indenture Purchase Contract Agreement) in accordance with the Remarketing Procedures and the Trust Agreement (each such remarketing, the "Subsequent Remarketing"), provided that (i) the notice of any Subsequent Remarketing cannot be given until the Failed Remarketing notice has been published in accordance with the Remarketing Procedures in respect of any immediately proceeding Failed Remarketing and (ii) the Remarketing Date in respect of any Subsequent Remarketing must fall no later than on the Business Day (as supplemented from time to timedefined in the Purchase Contract Agreement) immediately preceding the Purchase Contract Date (as defined in the Purchase Contract Agreement).
(f) If, by 4:00 p.m. (p.m., New York City time) , on the applicable Remarketing DateDate (including a Remarketing Date of any Subsequent Remarketing), (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at Trust Preferred Securities subject to the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant notified to the terms Remarketing Agent by the Purchase Contract Agent and conditions hereof the Custodial Agent on or (ii) prior to the first Business Day prior to the Remarketing did not occur on such Remarketing Date because one of (the conditions set forth in Section 7 hereof was not satisfied"Remarketed Trust Preferred Securities") tendered or deemed tendered for purchase, a failed Remarketing ("Failed Remarketing Remarketing") shall be deemed to have occurred, and the Remarketing Agent shall shall, on such date, so advise, advise by telephone, the Depositary, telephone the Purchase Contract Agent, the Indenture Trustee, the Company, the LLC, the Trust, the Collateral Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in Property Trustee.
(g) On the sole reasonable discretion of third Business Day following the Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketingremit (i) to the Collateral Agent the Remarketed Trust Preferred Securities consisting of the Pledged Trust Preferred Securities, if any, and (ii) to the Custodial Agent for distribution to the appropriate Holdersbalance of the Remarketed Trust Preferred Securities.
(gh) In the event of a Successful Remarketing, by By approximately 4:30 p.m. (p.m., New York City time) , on the applicable Remarketing Date (or any Subsequent Remarketing Date), provided that there has not been a Failed Remarketing, the Remarketing Agent shall advise, by telephone:
telephone (i) the DepositaryCompany, the LLC, the Trust, the Purchase Contract Agent Agent, the Depositary and the Company Indenture Trustee, of the Reset Rate determined by in the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold Trust Preferred Securities remarketed in such the Remarketing; and
, (ii) each purchaser (or the Depositary Participant thereof) of Remarketed Senior Notes purchasing Trust Preferred Securities sold in the Remarketing of the Reset Rate and the number of Remarketed Senior Notes Trust Preferred Securities such purchaser is to purchase; and
purchase and (iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day immediately following the date of such Successful Remarketing Purchase Contract Settlement Date in same-same day funds against delivery of the Remarketed Senior Notes Trust Preferred Securities purchased through the facilities of the Depositary.
(i) In accordance with the Depositary's normal procedures, on the Remarketing Date, the transactions described above with respect to each Trust Preferred Security tendered for purchase and remarketed in the Remarketing shall be executed through the Depositary, and the accounts of the appropriate Depositary participants shall be debited and credited, respectively, and such Trust Preferred Securities delivered by book-entry as necessary to effect purchases and remarketings of such Trust Preferred Securities.
(j) On the Remarketing Date, the tender and settlement procedures set forth in this Section 1, including provisions for payment by purchasers of the Trust Preferred Securities in the Remarketing, shall be subject to modification to the extent required by the Depositary or if the book-entry system is no longer available for the Trust Preferred Securities at the time of the Remarketing, to facilitate the tendering and remarketing of the Trust Preferred Securities in certificated form. In addition, the Remarketing Agent may modify the settlement procedures set forth herein in order to facilitate the settlement process.
(k) On the Remarketing Date, the Remarketing Agent shall retain as a remarketing fee for itself an amount not exceeding 25 basis points (0.25%) of the total proceeds from the sale of the Remarketed Trust Preferred Securities. The Remarketing Agent shall also, if required by use the Securities Act or the rules and regulations promulgated thereunder, deliver to each purchaser a Prospectus in connection with the Remarketing.
(h) After deducting any fees specified in Section 4 below, portion of the proceeds from a Successful Remarketing attributable to the Trust Preferred Securities that were components of Equity Security Units to purchase (in open market or at treasury auction, in its discretion) the amount and types of U.S. Treasury securities set forth in clauses (i) with respect to the Senior Notes that are components and (ii) of the Corporate Units, shall be paid to the Collateral Agent definition of "Remarketing Value" set forth in accordance with Sections 5.07 and 7.05 of the Pledge Agreement, as the case may be, and Section 5.02 5.2(b)(i) of the Purchase Contract Agreement and (ii) with respect shall deliver such securities through the Purchase Contract Agent to the Separate Senior Notes, Collateral Agent to secure the obligations under the related purchase contracts of the Holders of Equity Security Units whose Trust Preferred Securities were included in the Remarketing. The Remarketing Agent shall be paid remit the portion of the proceeds attributable to the Custodial Agent for payment Trust Preferred Securities that were not components of Equity Security Units to the holders of such Separate Senior Notes in accordance with Section 5.02 Trust Preferred Securities. The Remarketing Agent shall remit the any remaining balance of the proceeds to the Purchase Contract Agreement and Sections 5.07 and 7.05 Agent for the benefit of the Pledge AgreementHolders of Equity Security Units participating in the Remarketing.
(il) The right Remarketing 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) Trust Preferred Securities is also provided for in the Remarketing Agent conducts a Remarketing pursuant to the terms of this Purchase Contract Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at Pledge Agreement and 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 Agent as and when requiredTrust Agreement.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Notes for Remarketing.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC Lehman Brothers as exclusive remarketing agent (the exclusive "Remarketing Agent, and, subject to the terms and conditions set forth herein, Banc of America Securities LLC hereby accepts appointment as Remarketing Agent, for Agen▇") ▇▇r the purpose of (i) Remarketing the Remarketed Senior Notes Preferred Stock on behalf of the holders thereof, thereof and (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August 16, 2008 (the “Initial Remarketing Date”), the The Remarketing Agent shall agrees (i) to use commercially reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”) the Remarketed Senior Notes, at a price (the “Remarketing Price”) equal Preferred Stock tendered or deemed tendered to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion Remarketing, (ii) to notify the Company promptly of the Reset Rate and (iii) to carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase PriceProcedures.
(c) In the case of a Failed Initial Remarketing and unless a Special Event Redemption has occurred prior to such date, on On the third Business Day immediately preceding the Purchase Contract Settlement Date (the “Final "Remarketing Date”"), the Remarketing Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “Final Remarketing”) the Remarketed Senior Notes remarket, at a price (the “Final Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the case of the Initial Remarketing, and at least 100100.50% of the aggregate principal amount of liquidation preference thereof, the Remarketed Senior Notes, in the case of the Final RemarketingPreferred Stock tendered or deemed tendered for purchase.
(d) In connection with each RemarketingIf, as a result of the efforts described in Section 1(b), the Remarketing Agent determines that it will be able to remarket all Remarketed Securities tendered or deemed tendered for purchase at a price of 100.50% of the aggregate liquidation preference of such Remarketed Preferred Stock prior to 4:00 p.m., New York City time, on the Remarketing Date, the Remarketing Agent shall determinedetermine the Reset Rate, in consultation with the Company, which shall be the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, ) 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 Remarketing Agent determines, in its sole judgment, to be the lowest rate per annum that will enable it to remarket all of the Remarketed Senior Notes at the Remarketing Price Preferred Stock tendered or Final Remarketing Price, as the case may be, in such deemed tendered for Remarketing.
(e) In the event of a Failed Remarketing or if no Senior Notes are included in Corporate Units, and if If none of the holders of the Separate Senior Notes elect Remarketed Preferred Stock elects to have Senior Notes be remarketed Remarketed Preferred Stock Remarketed in such the Remarketing, the applicable interest Remarketing Agent shall, in its sole discretion, determine the rate that would have been established had a Remarketing of all the Preferred Stock been held on the Senior Notes will not be reset Remarketing Date, and will continue to such rate shall be the Coupon Rate set forth in the Indenture as supplemented from time to timeReset Rate.
(f) If, by 4:00 p.m. (p.m., New York City time) , on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price Preferred Stock tendered or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfieddeemed tendered for purchase, a failed Remarketing (the "Failed Remarketing Remarketing") shall be deemed to have occurred, and the Remarketing Agent shall so advise, advise by telephone, telephone the Depositary, the Purchase Contract Agent Depositary and the Company. Whether or not there has been If a Failed Remarketing occurs, the Reset Rate will be determined equal to (i) the "AA" Composite Commercial Paper Rate on the Remarketing Date, plus (ii) a spread as set forth in the sole reasonable discretion Certificate of the Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate HoldersDesignations.
(g) In the event of a Successful Remarketing, by By approximately 4:30 p.m. (p.m., New York City time) , on the applicable Remarketing Date, PROVIDED that there has not been a Failed Remarketing, the Remarketing Agent shall advise, by telephone:
telephone (i) the Depositary, the Purchase Contract Agent Depositary and the Company of the Reset Rate determined by in the Remarketing Agent in such Remarketing and the number of shares of Remarketed Senior Notes Preferred Stock sold in such the Remarketing; and
, (ii) each purchaser (or the Depositary Participant thereof) of Remarketed Senior Notes of the Reset Rate and the number of shares of Remarketed Senior Notes Preferred Stock such purchaser is to purchase; and
purchase and (iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day immediately following the date of such Successful Remarketing Purchase Contract Settlement Date in same-same day funds against delivery of the shares of Remarketed Senior Notes Preferred Stock purchased through the facilities of the Depositary. The Remarketing Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful The Remarketing Agent shall remit (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 proceeds of the Remarketed Preferred Stock subject to the Pledge Agreement, as the case may be, and Section 5.02 Agreement in an amount equal to 100% of the Purchase Contract Agreement aggregate liquidation preference of such Remarketed Preferred Stock 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 Depositary Participant of the Purchase Contract Agreement and Sections 5.07 and 7.05 seller of the Pledge Agreement.
(i) 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 Preferred Stock not subject to the conditions that (i) the Remarketing Agent conducts a Remarketing pursuant Pledge Agreement proceeds of such Remarketed Preferred Stock in an amount equal to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation 100% of the foregoing, the Remarketing Agent shall not be deemed an underwriter aggregate liquidation preference of the such Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Notes for RemarketingPreferred Stock.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, Banc of America Securities LLC hereby accepts appointment as Remarketing Agent, for the purpose of (i) Remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August February 16, 2008 2007 (the “Initial Remarketing Date”), the Remarketing Agent shall use commercially reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”) the Remarketed Senior Notes, at a price (the “Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “Final Remarketing”) the Remarketed Senior Notes at a price (the “Final Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, ; in the case of the Initial Remarketing, and at least 100% of the aggregate principal amount of the Remarketed Senior Notes, in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, 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 Remarketing Agent will enable it to remarket all of the Remarketed Senior Notes at the Remarketing Price or Final Remarketing Price, as the case may be, in such Remarketing.
(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. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, by telephone, the Depositary, the Purchase Contract Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and;
(ii) 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; and
(iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third 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 Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 of the Pledge Agreement.
(i) 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 Agent conducts a Remarketing pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Notes for Remarketing.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC ▇▇▇▇▇▇ Brothers Inc. as exclusive remarketing agent (the exclusive "Remarketing Agent"), and, subject to the terms and conditions set forth herein, Banc of America Securities LLC ▇▇▇▇▇▇ Brothers Inc. hereby accepts appointment as Remarketing Agent, for the purpose of (i1) Remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, thereof and (iii2) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August 16, 2008 (the “Initial Remarketing Date”), the The Remarketing Agent shall agrees to (1) use commercially reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”) the Remarketed Senior Notes, at a price (the “Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% tendered or deemed tendered to the Remarketing Agent in the discretion Remarketing, (2) provide prompt notice of the Reset Rate as set forth in this Agreement and (3) carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase PriceProcedures.
(c) In the case of a Failed Initial Remarketing and unless a Special Event Redemption has occurred prior to such date, on On the third Business Day immediately preceding the Purchase Contract Settlement Date (the “Final "Remarketing Date”"), the Remarketing Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “Final Remarketing”) the Remarketed Senior Notes remarket, at a price (the “Final Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the aggregate principal amount of thereof, the Remarketed Senior Notes being remarketed tendered or deemed tendered for purchase.
(d) If, as a result of the efforts described in such Final Remarketing. It is understood and agreed that Section 2(b), the Remarketing on any Remarketing Date Agent determines that it will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% of the sum of the Treasury Portfolio Purchase Price and the Separate able to remarket all Remarketed Senior Notes Purchase Price, in the case tendered or deemed tendered for purchase at a price of the Initial Remarketing, and at least 100100.25% of the aggregate principal amount of the such Remarketed Senior Notes, in Notes prior to 4:00 p.m. (New York City time) on the case of the Final Remarketing.
(d) In connection with each RemarketingRemarketing Date, the Remarketing Agent shall determinedetermine the Reset Rate, in consultation with the Company, which shall be the rate per annum, annum (rounded to the nearest one-thousandth (0.001) of one percent per annum, ) 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 Remarketing Agent determines, in its sole judgment, to be the lowest rate per annum that will enable it to remarket all Remarketed Senior Notes tendered or deemed tendered for Remarketing at the aforementioned purchase price.
(e) Upon receipt of the proceeds from the Remarketing, the Remarketing Agent shall:
(1) remit to the Collateral Agent the portion of the proceeds from the Remarketing of the Remarketed Senior Notes at subject to the Pledge Agreement equal to 100% of the Principal Amount of such Remarketed Senior Notes;
(2) remit to the Holders of Remarketed Senior Notes not subject to the Pledge Agreement the portion of the proceeds from the Remarketing Price or Final equal to 100% of the Principal Amount of such Remarketed Senior Notes, and
(3) retain an amount equal to .25% of the Principal Amount for the performance of its services as Remarketing Price, as the case may be, in such RemarketingAgent hereunder.
(ef) In the event of a Failed Remarketing or if no Senior Notes are included in Corporate Units, and if If none of the holders of the Separate Remarketed Senior Notes elect elects, or is deemed to have elected, to have Remarketed Senior Notes be remarketed in such the Remarketing, the applicable interest Remarketing Agent shall, in its sole discretion after consultation with the Company, determine the rate that would have been established had a Remarketing been held on the Senior Notes will not be reset Remarketing Date, and will continue to such rate shall be the Coupon Rate set forth Reset Rate. By approximately 4:30 p.m. (New York City time) on the Remarketing Date, the Remarketing Agent shall advise by telephone (promptly confirmed in writing) the Depositary, the Indenture as supplemented from time to timeTrustee and the Company of such Reset Rate.
(fg) If, by 4:00 p.m. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price tendered or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfieddeemed tendered for purchase, a failed Remarketing ("Failed Remarketing Remarketing") shall be deemed to have occurred, and the Remarketing Agent shall so advise, advise by telephone, telephone (promptly confirmed in writing) the Depositary, the Purchase Contract Agent Agent, the Indenture Trustee and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Failed Remarketing, the Reset Rate shall be equal to the Two-Year Benchmark Rate plus the Applicable Spread and, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise by telephone (promptly confirmed in writing) the Depositary, the Indenture Trustee and the Company of such Reset Rate.
(h) Provided that there has not been a Failed Remarketing, by approximately 4:30 p.m. (New York City time), on the Remarketing Date, the Remarketing Agent shall advise, by telephone:telephone (promptly confirmed in writing in the case of clause (1)):
(i1) the Depositary, the Purchase Contract Agent Indenture Trustee and the Company of the Reset Rate determined by in the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such the Remarketing; and;
(ii2) each purchaser (or the Depositary Clearing Agency Participant thereof) of Remarketed Senior Notes of the Reset Rate and the number of Remarketed Senior Notes such purchaser is to purchase; and
(iii3) each such purchaser to give instructions to its Depositary Clearing Agency Participant to pay the purchase price on the third Business Day Purchase Contract Settlement Date in immediately following the date of such Successful Remarketing in same-day available funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary. The Remarketing Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 of the Pledge Agreement.
(i) 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 Agent conducts a Remarketing pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Notes for Remarketing.
Appears in 1 contract
Sources: Remarketing Agreement (Dominion Resources Inc /Va/)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, Banc of America Securities LLC hereby accepts appointment as Remarketing Agent, for the purpose of (i) Remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August 1615, 2008 2006 (the “Initial Remarketing Date”), the Remarketing Agent shall use commercially reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”) the Remarketed Senior Notes, at a price (the “Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “Final Remarketing”) the Remarketed Senior Notes at a price (the “Final Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of 100.00%)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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, ; in the case of the Initial Remarketing, and at least 100% of the aggregate principal amount of the Remarketed Senior Notes, in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, 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 Remarketing Agent will enable it to remarket all of the Remarketed Senior Notes at the Remarketing Price or Final Remarketing Price, as the case may be, in such Remarketing.
(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 Indenture, as supplemented from time to time.
(f) If, by 4:00 p.m. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, by telephone, the Depositary, the Purchase Contract Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and;
(ii) 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; and
(iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third 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 Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 7.03 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 7.03 of the Pledge Agreement.
(i) 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 Agent conducts a Remarketing pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Notes for Remarketing.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The On or before the 20th Business Day prior to the Initial Remarketing Date (the "Appointment Date"), the Company hereby appoints Banc shall send written notice appointing any of America Securities LLC UBS, BAS or JPMorgan as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, Banc of America Securities LLC hereby accepts appointment as Remarketing Agent, for the purpose of (i) Remarketing remarketing the Remarketed Senior Notes on behalf of the holders Holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents; provided that if the Company fails to appoint a Remarketing Agent pursuant to this Section 2(a) by the Appointment Date, the Company shall be deemed to have appointed UBS as the Remarketing Agent. Each of UBS, BAS and JPMorgan hereby agree that if the Company chooses to appoint it as the Remarketing Agent, it shall, subject to the terms and conditions set forth herein, accept such appointment by the Company as the exclusive Remarketing Agent.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August 16________ ___, 2008 ___ (the “"Initial Remarketing Date”"), the Remarketing Agent shall use commercially its reasonable efforts to remarket (based on the Reset Rate) (the “"Initial Remarketing”") the Remarketed Senior Notes, at a price (the “"Remarketing Price”) "), based on the Reset Rate, equal to approximately 100.25______% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “"Final Remarketing”") the Remarketed Senior Notes at a price (the “"Final Remarketing Price”) "), based on the Reset Rate, equal to approximately 100.25______% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100______% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the case of the an Initial Remarketing, and at least 100Remarketing _______% of the aggregate principal amount of the Remarketed Senior Notes, Notes in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, 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 Remarketing Agent will enable it 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 (i) be less than the Coupon Rate set forth in the Indenture or (ii) exceed the maximum interest rate permitted by law.
(e) In the event of a Failed Remarketing Remarketing, or if no Senior Notes are included in Corporate Units, Units and if none of the holders 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 timeIndenture.
(f) If, by 4:00 p.m. (p.m., New York City time) , on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, advise by telephone, 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 Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (p.m., New York City time) , on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and;
(ii) 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; and
(iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day business day immediately following the date of such Successful Remarketing in same-same day funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary. The Remarketing Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 4.07 and 7.05 6.03 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract Agreement and (ii) with respect to the Separate Senior Notes, shall be paid to the Custodial Agent for payment to the holders Holders of such Separate Senior Notes in accordance with Section 5.02 of the Purchase Contract Agreement and Sections 5.07 and 7.05 of the Pledge Agreement.
(i) 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 Agent conducts a Remarketing pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Notes for Remarketing.Section 6.03
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC [Morgan Stanley & Co. Incorporated] as the exclusive Remarketing Agent, and▇▇▇, subject s▇▇▇▇▇▇ to the terms and conditions set forth herein, Banc of America Securities LLC [Morgan Stanley & Co. Incorporated] hereby accepts appointment as Remarketing AgentRemar▇▇▇▇▇▇ ▇▇▇▇▇, for the purpose of (i) Remarketing remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement Agreement, the Indenture and the Supplemental Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August 16, 2008 2006 (the “"Initial Remarketing Date”"), the Remarketing Agent shall use commercially its reasonable efforts to remarket (based on the Reset Rate) (the “"Initial Remarketing”") the Remarketed Senior Notes, at a price (the “"Remarketing Price”") equal to approximately 100.25100.50% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event not less than 100.00100%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Note Purchase Price.
(c) In the case of a Failed Initial 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 September 16, 2006 (the “Final "Second Remarketing Date”"), the Remarketing Agent shall use its commercially reasonable efforts to remarket (based the "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 Reset Rate) third Business Day immediately preceding October 16, 2006 (the “"Third Remarketing Date"), the Remarketing Agent shall use its 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 Agent shall use its reasonable efforts to remarket (the "Final Remarketing”") the Remarketed Senior Notes at a price (the “"Final Remarketing Price”") equal to approximately 100.25100.50% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event not less than 100.00100%) 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 will be considered successful and no further attempts will be made if the resulting proceeds (net of any fees and commissions) are at least 100% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Note Purchase Price, in the case caser of a Remarketing other than the Initial Final Remarketing, and at least or 100% of the aggregate principal amount of the Remarketed Senior Notes, Notes in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, determine the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, that the Senior Notes should bear (the “"Reset Rate”") in order for the Remarketed Senior Notes of the Corporate Unit holders 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 Remarketing Agent will enable it 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 Unitsa Failed Final Remarketing, and or if none of the holders of the Separate Senior Notes or the holders of the Corporate Units 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 timeRate.
(f) If, by 4:00 p.m. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing or Failed Final Remarketing, as the case may be, shall be deemed to have occurred, and the Remarketing Agent shall so advise, by telephone, 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 or a Failed Final Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and;
(ii2) 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; and
(iii3) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day business day immediately following the date of such Successful Remarketing in same-same day funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary. The Remarketing Agent 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.
(h) After deducting any fees the Fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that which are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 7.06 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 Section 7.06 of the Pledge Agreement.
(i) 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 Agent conducts an Initial Remarketing, a Second Remarketing in the event of a Failed Initial Remarketing, a Third Remarketing in the event of a Failed Second Remarketing and 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 Agent is 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Remarketed Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Neither the Company nor the Remarketing Agent shall similarly not be obligated in any case to provide funds to make payment upon tender of the Remarketed Senior Notes for Remarketing.
Appears in 1 contract
Sources: Remarketing Agreement (Hartford Financial Services Group Inc/De)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC Morgan Stanley & Co. Incorporated as the exclusive Remarketing Agent, and▇▇▇, subject s▇▇▇▇▇▇ to the terms and conditions set forth herein, Banc of America Securities LLC Morgan Stanley & Co. Incorporated hereby accepts appointment as Remarketing AgentRemar▇▇▇▇▇▇ ▇▇▇▇▇, for the purpose of (i) Remarketing remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August November 16, 2008 2005 (the “Initial Remarketing Date”"INITIAL REMARKETING DATE"), the Remarketing Agent shall use commercially its reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”"INITIAL REMARKETING") the Remarketed Senior Notes, at a price (the “Remarketing Price”) "REMARKETING PRICE"), based on the Reset Rate, equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00100%, net of any Remarketing Fee and any other fees and commissions) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 December 16, 2005 (the “Final Remarketing Date”"SECOND REMARKETING DATE"), the Remarketing Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “Final Remarketing”"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 January 16, 2006 (the "THIRD REMARKETING DATE"), the Remarketing Agent shall use its reasonable efforts to remarket (the "THIRD REMARKETING") the Remarketed 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 Agent shall use its reasonable efforts to remarket (the "FINAL REMARKETING") the Remarketed Notes at a price (the “Final Remarketing Price”) "FINAL REMARKETING PRICE"), based on the Reset Rate, equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00100%, net of any Remarketing Fee and any other fees and commissions) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% (net of any Remarketing Fee and any other fees and commissions) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the case of a Remarketing other than the Initial Final Remarketing, and at least or 100% (net of any Remarketing Fee and any other fees and commissions) of the aggregate principal amount of the Remarketed Senior Notes, Notes in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, that the Senior Notes should bear (the “Reset Rate”"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 Remarketing Agent will enable it 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 (i) be less than the Coupon Rate Set forth in the Indenture or (ii) exceed the maximum interest rate permitted by law.
(e) In the event of a Failed Remarketing Remarketing, or if no Senior Notes are included in Corporate Units, 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 timeIndenture.
(f) If, by 4:00 p.m. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, advise by telephone, telephone the Depositary, the Purchase Contract Agent and the Company, and return the Remarketed 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 Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and;
(ii2) 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; and
(iii3) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day business day immediately following the date of such Successful Remarketing in same-same day funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary. The Remarketing Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 7.06 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 Section 7.06 of the Pledge Agreement.
(i) 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 Agent conducts (A) an 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 Agent is 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Remarketed Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Neither the Company nor the Remarketing Agent shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Remarketed Notes for Remarketing.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC Morgan Stanley & Co. Incorporated as the exclusive Remarketing Agent, and▇▇▇, subject to ▇u▇▇▇▇▇ ▇o the terms and conditions set forth herein, Banc of America Securities LLC Morgan Stanley & Co. Incorporated hereby accepts appointment as Remarketing AgentRemark▇▇▇▇▇ A▇▇▇▇, for ▇or the purpose of (i) Remarketing remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Special Event Redemption has occurred prior to such date, on On the third Business Day immediately preceding August February 16, 2008 2006 (the “Initial "Remarketing Date”"), the Remarketing Agent shall use commercially its reasonable efforts to remarket (the "Remarketing") the Remarketed Notes at a price (the "Remarketing Price"), based on the Reset Rate) (the “Initial Remarketing”) the Remarketed Senior Notes, at a price (the “Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rateprice, at a rate price below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00100%) , net of the sum of the Treasury Portfolio Purchase Price any Remarketing Fee and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial Remarketing any other fees 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 Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “Final Remarketing”) the Remarketed Senior Notes at a price (the “Final Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%commissions) 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 the Remarketing Date will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% (net of the sum of the Treasury Portfolio Purchase Price any Remarketing Fee and the Separate Senior Notes Purchase Price, in the case of the Initial Remarketing, any other fees and at least 100% commissions) of the aggregate principal amount of the Remarketed Senior Notes, in the case of the Final Remarketing.
(dc) In connection with each the Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, 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 Remarketing Agent will enable it 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.
(ed) In the event of a Failed Remarketing Remarketing, or if no Senior Notes are included in Corporate Units, 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 timeIndenture.
(fe) If, by 4:00 p.m. (p.m., New York City time) , on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, advise by telephone, telephone the Depositary, the Purchase Contract Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. Promptly following any No Remarketed Notes shall be sold if there is a Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(gf) In the event of a Successful Remarketing, by approximately 4:30 p.m. (p.m., New York City time) , on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such the Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and;
(ii2) 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; and
(iii3) each such purchaser to give instructions to its Depositary Participant to pay the purchase price prior to 11:00 a.m., New York City time, on the third Business Day immediately following the date of such the Successful Remarketing in same-same day funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary. The Remarketing Agent 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.
(hg) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i1) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 of the Pledge Agreement, as the case may be, Agreement and Section 5.02 of the Purchase Contract Agreement and (ii2) 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 Purchase Contract Agreement and Sections 5.07 and 7.05 of the Pledge Agreement.
(ih) The right of each holder of Separate Senior Notes or Corporate Units to have Remarketed Senior Notes remarketed and sold on any the Remarketing Date shall be subject to the conditions that (i1) the Remarketing Agent conducts a Remarketing pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii2) the Remarketing Agent is 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 (iv3) such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agent as and when required.
(ji) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Remarketed Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Neither the Company nor the Remarketing Agent shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Remarketed Notes for Remarketing.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated as exclusive remarketing agent (the exclusive "Remarketing Agent"), and, subject to the terms and conditions set forth herein, Banc of America Securities LLC ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated hereby accepts appointment as Remarketing Agent, for the purpose of (i1) Remarketing the Remarketed Senior Deferrable Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, thereof and (iii2) performing such other duties as are assigned to the Remarketing Agent in the Transaction DocumentsRemarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August 16, 2008 (the “Initial Remarketing Date”), the The Remarketing Agent shall agrees to (1) use commercially reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”) the Remarketed Senior Notes, at a price (the “Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Deferrable Notes at such a rate, at a rate below 100.25% tendered or deemed tendered to the Remarketing Agent in the discretion Remarketing, (2) notify the Company promptly of the Reset Rate and (3) carry out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase PriceProcedures.
(c) In the case of a Failed Initial Remarketing and unless a Special Event Redemption has occurred prior to such date, on On the third Business Day immediately preceding the Purchase Contract Settlement Date (the “Final "Remarketing Date”"), the Remarketing Agent shall use its commercially reasonable efforts to remarket (based on remarket, at a price at least equal to 100.25% of the Reset Rate) (the “Final Remarketing”) Stated Amount, the Remarketed Senior Deferrable Notes at a price (the “Final Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the case of the Initial Remarketing, and at least 100% of the aggregate principal amount of the Remarketed Senior Notes, in the case of the Final Remarketingtendered or deemed tendered for purchase.
(d) In connection with each RemarketingIf, as a result of the efforts described in Section 2(b), the Remarketing Agent determines that it will be able to remarket all Remarketed Senior Deferrable Notes tendered or deemed tendered for purchase at a price at least equal to 100.25% of the Stated Amount prior to 4:00 p.m. (New York City time) on the Remarketing Date without increasing the Coupon Rate, the Remarketing Agent shall determine, in consultation with set the CompanyReset Rate at the Coupon Rate. If the Remarketing Agent determines immediately prior to Remarketing that it will not be able to remarket all of the Remarketed Senior Deferrable Notes tendered or deemed tendered for purchase at a price at least equal to 100.25% of the Stated Amount, the Remarketing Agent shall set the Reset Rate at a rate per annum, 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 Remarketing Agent determines to be the lowest rate per annum that will enable it to remarket all of the Remarketed Senior Deferrable Notes tendered or deemed tendered for purchase at a price equal to 100.25% of the Remarketing Price or Final Remarketing Price, as the case may be, in such RemarketingStated Amount.
(e) In Upon receipt of the event proceeds from the Remarketing, the Remarketing Agent shall:
(1) retain 25 basis points (.25%) of a Failed the Stated Amount for the performance of its services as Remarketing or if no Agent hereunder;
(2) remit to the Collateral Agent all excess proceeds of the Remarketed Senior Deferrable Notes are included in Corporate Units, and if subject to the Pledge Agreement; and
(3) remit to [the holders] all excess proceeds of the Remarketed Senior Deferrable Notes not subject to the Pledge Agreement.
(f) If none of the holders of the Separate Remarketed Senior Deferrable Notes elect elects to have Remarketed Senior Deferrable Notes be remarketed in such the Remarketing, the applicable interest Remarketing Agent shall determine the rate that would have been established had a Remarketing been held on the Senior Notes will not be reset Remarketing Date, and will continue to such rate shall be the Coupon Rate set forth in the Indenture as supplemented from time to timeReset Rate.
(fg) If, by 4:00 p.m. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Deferrable Notes at the Remarketing Price tendered or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfieddeemed tendered for purchase, a failed Remarketing ("Failed Remarketing Remarketing") shall be deemed to have occurred, and the Remarketing Agent shall so advise, advise by telephonetelephone DTC, the Depositary, the Purchase Contract Agent Senior Trustee and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Failed Remarketing, the Reset Rate shall equal the Two-Year Benchmark Treasury rate plus the Applicable Margin.
(h) Provided that there has not been a Failed Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the DepositaryDTC, the Purchase Contract Agent Senior Trustee and the Company of the Reset Rate determined by in the Remarketing Agent in such Remarketing and the number of Remarketed Senior Deferrable Notes sold in such the Remarketing; and;
(ii2) each purchaser (or the Depositary Clearing Agency Participant thereof) of Remarketed Senior Deferrable Notes of the Reset Rate and the number of Remarketed Senior Deferrable Notes such purchaser is to purchase; and
(iii3) each such purchaser to give instructions to its Depositary the Clearing Agency Participant to pay the purchase price on the third Business Day immediately following the date of such Successful Remarketing Purchase Contract Settlement Date in same-same day funds against delivery of the Remarketed Senior Deferrable Notes purchased through the facilities of the Depositary. The Remarketing Agent 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 RemarketingDTC.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 of the Pledge Agreement.
(i) 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 Agent conducts a Remarketing pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Notes for Remarketing.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC the Remarketing Agents as the exclusive remarketing agents with respect to the Initial Remarketing Agentand M▇▇▇▇▇▇ Lynch, andPierce, F▇▇▇▇▇ & S▇▇▇▇ Incorporated as Representative of the Remarketing Agents. M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Incorporated appoints the Representative to act on its behalf under this Agreement. The Representative, on behalf of the Remarketing Agents, and subject to the terms and conditions set forth herein, Banc of America Securities LLC hereby accepts such appointment as Remarketing Agent, for the purpose of (i) Remarketing remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent Agents in the Transaction Documents.
(b) Unless a Special Event Redemption has occurred prior to such dateOn August 11, on the third Business Day immediately preceding August 16, 2008 2006 (the “Initial Remarketing Date”), each of the Remarketing Agent Agents shall use commercially its reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”) the Remarketed Senior Notes, at a price (the “Remarketing Price”) ), based on the Reset Rate, equal to approximately 100.25100.50% (or, if the Remarketing Agent is Agents are unable to remarket the Remarketed Senior Notes at such a rateprice, at a rate price below 100.25100.50% in the discretion of the Remarketing AgentRepresentative, but in no event less than 100.00100%, net of any Remarketing Fee and any other fees and commissions) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial The 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 Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “Final Remarketing”) the Remarketed Senior Notes at a price (the “Final Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the case of the Initial Remarketing, and at least 100% of the aggregate principal amount of the Remarketed Senior Notes, in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent 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 Senior Notes should bear (the “Reset Rate”) in order for the Remarketed Senior Notes of the Corporate Unit holders to have an aggregate market value equal to the Remarketing Price or the Final Remarketing Priceand that, as the case may be, and that in the sole reasonable discretion of the Remarketing Agent Agents, will enable it 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.
(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, provided that such rate shall not exceed the applicable maximum 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 timepermitted by law.
(fd) If, by 4:00 p.m. (New York City time) on the applicable Initial Remarketing Date, (i) the Remarketing Agent is Agents are unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a failed remarketing (“Failed Remarketing Remarketing”) shall be deemed to have occurred, and the Remarketing Agent Representative shall so 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 Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate HoldersRepresentative.
(ge) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Initial Remarketing Date, the Remarketing Agent Representative shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent Agent, the Indenture Trustee and the Company of the Reset Rate determined by the Remarketing Agent Agents in such Remarketing and the number aggregate principal amount of Remarketed Senior Notes sold in such Remarketing; and;
(ii) each purchaser (or the Depositary Participant thereof) of Remarketed Senior Notes of the Reset Rate and the number aggregate principal amount of Remarketed Senior Notes such purchaser is to purchase; and
(iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day immediately following the date of such Successful Remarketing Settlement Date, in same-same day funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary. The Remarketing Agent 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.
(hf) If the Company purchases any Remarketed Senior Notes in the Initial Remarketing, the Company agrees to pay to the Representative, on behalf of the several Remarketing Agents, the purchase price for such Remarketed Senior Notes on the Remarketing Settlement Date, in same day funds, against delivery of Remarketed Senior Notes so purchased.
(g) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing Remarketing, (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 Section 7.06 of the Pledge Agreement, as the case may be, Agreement and Section 5.02 5.02(a)(i) of the Purchase Contract Agreement and (ii) with respect to the any Separate Senior NotesNotes included in the Remarketing, shall be paid to the Custodial Agent for payment to the holders of such Separate Senior Notes in accordance with Section 5.02 5.02(a)(i) of the Purchase Contract Agreement and Sections 5.07 Section 5.07(c) and 7.05 Section 7.06 of the Pledge Agreement.
(ih) The right of each holder of Separate Senior Notes or Corporate Units to have Remarketed Senior Notes remarketed and sold on any the Initial Remarketing Date shall be subject to the conditions that (i) the Remarketing Agent conducts a Remarketing pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent is 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 (ivii) such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agent Agents as and when requiredrequired and (iii) the Remarketing is settled in accordance with this Agreement.
(ji) It is understood and agreed that the Remarketing Agent Agents shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Remarketed Senior Notes for Remarketing or to otherwise expend or risk its or their own funds or incur or to be exposed to financial liability in the performance of its or their duties under this Agreement. Subject to Section 2(f) above, and without limitation of neither the foregoing, Company nor the Remarketing Agent Agents shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Remarketed Senior Notes for Remarketing.
Appears in 1 contract
Sources: Remarketing Agreement (Hartford Financial Services Group Inc/De)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, Banc of America Securities LLC hereby accepts appointment as Remarketing Agent, for the purpose of (i) Remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August 16, 2008 (the “"Initial Remarketing Date”"), the Remarketing Agent shall use commercially reasonable efforts to remarket (based on the Reset Rate) (the “"Initial Remarketing”") the Remarketed Senior Notes, at a price (the “"Remarketing Price”") equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “"Final Remarketing”") the Remarketed Senior Notes at a price (the “"Final Remarketing Price”") equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the case of the Initial Remarketing, and at least 100% of the aggregate principal amount of the Remarketed Senior Notes, in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, 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 Remarketing Agent will enable it to remarket all of the Remarketed Senior Notes at the Remarketing Price or Final Remarketing Price, as the case may be, in such Remarketing.
(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. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfied, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, by telephone, the Depositary, the Purchase Contract Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and
(ii) 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; and
(iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third 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 Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 of the Pledge Agreement.
(i) 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 Agent conducts a Remarketing pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Notes for Remarketing.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, Banc of America Securities LLC hereby accepts appointment as Remarketing Agent, for the purpose of (i) Remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August 16, 2008 (the “Initial Remarketing Date”), the Remarketing Agent shall use commercially reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”) the Remarketed Senior Notes, at a price (the “Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “Final Remarketing”) the Remarketed Senior Notes at a price (the “Final Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, ; in the case of the Initial Remarketing, and at least 100% of the aggregate principal amount of the Remarketed Senior Notes, in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, 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 Remarketing Agent will enable it to remarket all of the Remarketed Senior Notes at the Remarketing Price or Final Remarketing Price, as the case may be, in such Remarketing.
(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. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, by telephone, the Depositary, the Purchase Contract Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and
(ii) 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; and
(iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third 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 Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 of the Pledge Agreement.
(i) 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 Agent conducts a Remarketing pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Notes for Remarketing.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, Banc of America Securities LLC hereby accepts appointment as Remarketing Agent, for the purpose of (i) Remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August 1615, 2008 2006 (the “Initial Remarketing Date”), the Remarketing Agent shall use commercially reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”) the Remarketed Senior Notes, at a price (the “Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “Final Remarketing”) the Remarketed Senior Notes at a price (the “Final Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, ; in the case of the Initial Remarketing, and at least 100% of the aggregate principal amount of the Remarketed Senior Notes, in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, 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 Remarketing Agent will enable it to remarket all of the Remarketed Senior Notes at the Remarketing Price or Final Remarketing Price, as the case may be, in such Remarketing.
(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 Indenture, as supplemented from time to time.
(f) If, by 4:00 p.m. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, by telephone, the Depositary, the Purchase Contract Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and;
(ii) 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; and
(iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third 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 Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 7.03 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 7.03 of the Pledge Agreement.
(i) 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 Agent conducts a Remarketing pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Notes for Remarketing.the
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC Goldman, Sachs & Co. as the exclusive Remarketing Agent, and, subject to the ▇▇▇▇▇▇t ▇▇ ▇▇e terms and conditions set forth herein, Banc of America Securities LLC Goldman, Sachs & Co. hereby accepts appointment as Remarketing AgentRemarketin▇ ▇▇▇▇▇, for the purpose of (i) Remarketing remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August May 16, 2008 2006 (the “Initial Remarketing Date”"INITIAL REMARKETING DATE"), the Remarketing Agent shall use commercially its reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”"INITIAL REMARKETING") the Remarketed Senior Notes, at a price (the “Remarketing Price”) "REMARKETING PRICE"), based on the Reset Rate, equal to approximately 100.25100.50% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rateprice, at a rate price below 100.25100.50% in the discretion of the Remarketing Agent, but in no event less than 100.00100%, net of any Remarketing Fee and any other fees and commissions) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 June 16, 2006 (the “Final Remarketing Date”"SECOND REMARKETING DATE"), the Remarketing Agent shall use its commercially reasonable efforts to remarket (based the "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 Reset Rate) third Business Day immediately preceding July 16, 2006 (the “Final Remarketing”"THIRD REMARKETING DATE"), the Remarketing Agent shall use its 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 Agent shall use its reasonable efforts to remarket (the "FINAL REMARKETING") the Remarketed Senior Notes at a price (the “Final Remarketing Price”) "FINAL REMARKETING PRICE"), based on the Reset Rate, equal to approximately 100.25100.50% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rateprice, at a rate price below 100.25100.50% in the discretion of the Remarketing Agent, but in no event less than 100.00100%, net of any Remarketing Fee and any other fees and commissions) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% (net of any Remarketing Fee and any other fees and commissions) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the case of a Remarketing other than the Initial Final Remarketing, and at least or 100% (net of any Remarketing Fee and any other fees and commissions) of the aggregate principal amount of the Remarketed Senior Notes, Notes in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, that the Senior Notes should bear (the “Reset Rate”"RESET RATE") in order for the Remarketed Senior Notes of the Normal Unit holders 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 Remarketing Agent will enable it 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. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so 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 Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(gf) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent Agent, the Indenture Trustee and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and;
(ii) 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; and
(iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the date on which such Remarketing is to be settled, which shall be no later than the third Business Day business day immediately following the date of such Successful Remarketing Remarketing, in same-same day funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary. The Remarketing Agent 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.
(hg) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Pledged Senior Notes that are components of the Corporate UnitsNotes, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 7.06 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 Section 7.06 of the Pledge Agreement.
(ih) The right of each holder of Separate Senior Notes or Corporate Normal Units to have Remarketed Senior Notes remarketed and sold on any Remarketing Date shall be subject to the conditions that (i) the Remarketing Agent conducts 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 Agent is 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 Agent as and when requiredrequired and (v) the Remarketing is settled in accordance with this Agreement.
(ji) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Remarketed Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Neither the Company nor the Remarketing Agent shall similarly not be obligated in any case to provide funds to make payment upon tender of the Remarketed Senior Notes for Remarketing.
Appears in 1 contract
Sources: Remarketing Agreement (Hartford Financial Services Group Inc/De)
Appointment and Obligations of the Remarketing Agent. (a) The On or before the 20/th/ Business Day prior to the Initial Remarketing Date (the "Appointment Date"), the Company hereby appoints shall send written notice appointing any of Banc of America Securities LLC America, CSFB or UBS as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, Banc of America Securities LLC hereby accepts appointment as Remarketing Agent, Agent for the purpose of (i) Remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents; provided that if the Company fails to appoint a Remarketing Agent pursuant to this Section 2(a) by the Appointment Date, the Company shall be deemed to have appointed Banc of America as the Remarketing Agent. Each of Banc of America, CSFB and UBS hereby agree that if the Company chooses to appoint it as the Remarketing Agent, it shall, subject to the terms and conditions set forth herein, accept such appointment by the Company as the exclusive Remarketing Agent.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August November 16, 2008 2005 (the “"Initial Remarketing Date”"), the Remarketing Agent shall use commercially its reasonable efforts to remarket (based on the Reset Rate) (the “"Initial Remarketing”") the Remarketed Senior Notes, at a price (the “"Remarketing Price”) "), based on the Reset Rate, equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “"Final Remarketing”") the Remarketed Senior Notes at a price (the “"Final Remarketing Price”) "), based on the Reset Rate, equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100100.25% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the case of the Initial Remarketing, and at least 100or 100.25% of the aggregate principal amount of the Remarketed Senior Notes, Notes in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, 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 Remarketing Agent will enable it 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 Indenture, as supplemented from time to time.
(f) If, by 4:00 p.m. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, by telephone, telephone the Depositary, the Purchase Contract Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and;
(ii) 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; and
(iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day business day immediately following the date of such Successful Remarketing in same-same day funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary. The Remarketing Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 7.03 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 7.03 of the Pledge Agreement.
(i) 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 conditions
(i) the Remarketing Agent conducts a an Initial Remarketing pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, based on the Reset Rate, be and (iv) such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Notes for Remarketing.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The On or before the 20/th/ Business Day prior to the Initial Remarketing Date (the “Appointment Date”), the Company hereby appoints shall send written notice appointing any of Banc of America Securities LLC America, CSFB or UBS as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, Banc of America Securities LLC hereby accepts appointment as Remarketing Agent, Agent for the purpose of (i) Remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents; provided that if the Company fails to appoint a Remarketing Agent pursuant to this Section 2(a) by the Appointment Date, the Company shall be deemed to have appointed Banc of America as the Remarketing Agent. Each of Banc of America, CSFB and UBS hereby agree that if the Company chooses to appoint it as the Remarketing Agent, it shall, subject to the terms and conditions set forth herein, accept such appointment by the Company as the exclusive Remarketing Agent.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August November 16, 2008 2005 (the “Initial Remarketing Date”), the Remarketing Agent shall use commercially its reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”) the Remarketed Senior Notes, at a price (the “Remarketing Price”) ), based on the Reset Rate, equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “Final Remarketing”) the Remarketed Senior Notes at a price (the “Final Remarketing Price”) ), based on the Reset Rate, equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100100.25% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the case of the Initial Remarketing, and at least 100or 100.25% of the aggregate principal amount of the Remarketed Senior Notes, Notes in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, 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 Remarketing Agent will enable it 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 Indenture, as supplemented from time to time.
(f) If, by 4:00 p.m. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, by telephone, telephone the Depositary, the Purchase Contract Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and;
(ii) 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; and
(iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day business day immediately following the date of such Successful Remarketing in same-same day funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary. The Remarketing Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 7.03 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 7.03 of the Pledge Agreement.
(i) 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 Agent conducts a an Initial Remarketing pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, based on the Reset Rate, be and (iv) such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Notes for Remarketing.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, Banc of America Securities LLC ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated hereby accepts appointment as Remarketing Agent, for the purpose of (i) Remarketing remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August November 16, 2008 2005 (the “Initial Remarketing Date”"INITIAL REMARKETING DATE"), the Remarketing Agent shall use commercially its reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”"INITIAL REMARKETING") the Remarketed Senior Notes, at a price (the “Remarketing Price”) "REMARKETING PRICE"), based on the Reset Rate, equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00100%, net of any Remarketing Fee and any other fees and commissions) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 December 16, 2005 (the “Final Remarketing Date”"SECOND REMARKETING DATE"), the Remarketing Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “Final Remarketing”"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 January 16, 2006 (the "THIRD REMARKETING DATE"), the Remarketing Agent shall use its reasonable efforts to remarket (the "THIRD REMARKETING") the Remarketed 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 Agent shall use its reasonable efforts to remarket (the "FINAL REMARKETING") the Remarketed Notes at a price (the “Final Remarketing Price”) "FINAL REMARKETING PRICE"), based on the Reset Rate, equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00100%, net of any Remarketing Fee and any other fees and commissions) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% (net of any Remarketing Fee and any other fees and commissions) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the case of a Remarketing other than the Initial Final Remarketing, and at least or 100% (net of any Remarketing Fee and any other fees and commissions) of the aggregate principal amount of the Remarketed Senior Notes, Notes in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, that the Senior Notes should bear (the “Reset Rate”"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 Remarketing Agent will enable it 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 (i) be less than the Coupon Rate set forth in the Indenture or (ii) exceed the maximum interest rate permitted by law.
(e) In the event of a Failed Remarketing Remarketing, or if no Senior Notes are included in Corporate Units, 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 timeIndenture.
(f) If, by 4:00 p.m. (p.m., New York City time) , on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, advise by telephone, telephone the Depositary, the Purchase Contract Agent and the Company, and return the Remarketed 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 Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (p.m., New York City time) , on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and;
(ii2) 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; and
(iii3) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day business day immediately following the date of such Successful Remarketing in same-same day funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary. The Remarketing Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 7.06 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 Section 7.06 of the Pledge Agreement.
(i) 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 Agent conducts (A) an 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 Agent is 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Remarketed Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Neither the Company nor the Remarketing Agent shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Remarketed Notes for Remarketing.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC as the exclusive Remarketing Agent, and, subject to the terms [ ] and conditions set forth herein, Banc of America Securities LLC [ ] hereby accepts appointment as Remarketing Agentsuch appointment, for the purpose of (i) as the Remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determiningAgent to determine, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and Indenture (as in effect on the Indenturedate of this Remarketing Agreement) with respect to the Notes, the Reset Rate for that, in the Senior Notesopinion of the Remarketing Agent, will be reasonable and consistent with market practice at the time of remarketing, and, when applied to the Notes (iii) performing such other duties 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 are assigned 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 Agent 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 Agent (subject to the right of such Remarketing Agent to appoint additional remarketing agents hereunder as described below) to remarket the Notes to be included in the Transaction Documentsremarketing on the Remarketing Date or any Subsequent Remarketing Date, as the case may be. The Company agrees that the Remarketing Agent shall have the right, on 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) Unless a Special Event Redemption has occurred prior Subject to such date, on the third Business Day immediately preceding August 16, 2008 (the “Initial Remarketing Date”), the Remarketing Agent shall use commercially reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”) the Remarketed Senior Notes, at a price (the “Remarketing Price”) equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price terms and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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”)conditions set forth herein, the Remarketing Agent shall use its commercially reasonable efforts to (i) remarket (based on the Reset Rate) (Remarketing Date the “Final Remarketing”) Notes that the Remarketed Senior Notes at a price (Purchase Contract Agent or the “Final Remarketing Price”) equal to approximately 100.25% (or, if Custodial Agent shall have notified the Remarketing Agent is unable are to remarket the Remarketed Senior Notes at such a rate, be remarketed at a rate below 100.25Reset Rate such that the then current aggregate market value of the Notes is equal to at least 100.50% in the discretion of the Remarketing AgentValue, but and (ii) in no the event less than 100.00%) the Remarketing Agent cannot establish such a Reset Rate on the Remarketing Date, attempt to remarket such Notes on each of the aggregate principal amount two Business Days immediately following the Remarketing Date and, if necessary, on each of the Remarketed Senior Notes being remarketed 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 Final Remarketing. It is understood and agreed that the Remarketing on any Remarketing Date will be considered successful and no further attempts will be made if then current aggregate market value of the resulting proceeds are Notes is equal to at least 100100.50% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the case of the Initial RemarketingRemarketing Value, and at least 100% of the aggregate principal amount of the Remarketed Senior Notes, in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, that the Senior Notes should bear (the “Reset Rate”iii) 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 Remarketing Agent will enable it to remarket all of the Remarketed Senior Notes at the Remarketing Price or Final Remarketing Price, as the case may be, in such Remarketing.
(e) 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 by reference). After deducting the fee specified in Section 3 below, the remaining proceeds of any 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 if no Senior Separate Notes are to have Notes included in Corporate Units, and if none of any remarketing shall be limited to 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. (New York City time) on the applicable Remarketing Date, extent that (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at conducts a remarketing on the Remarketing Price Date or the Final on any Subsequent Remarketing PriceDate, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfied, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, by telephone, the Depositary, the Purchase Contract Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and
(ii) 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; and
(iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third 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 Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 of the Pledge Agreement.
(i) 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 Agent conducts a Remarketing pursuant to the terms of this Agreement, (ii) the Notes included in a Special Event Redemption has remarketing have not occurred prior been called for redemption pursuant to such Remarketing Datethe Purchase Contract Agreement, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior the Notes included in a remarketing 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 Price or the Final Remarketing Price, as the case may be, based on the Reset RateValue, and (iv) such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agent as and when required.
(jc) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in a remarketing held on the 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 Senior Notes for Remarketing remarketing or to otherwise expend or risk its their own funds or incur or to be exposed to financial liability in the performance of its their respective duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender delivery of the Senior Notes for Remarketingremarketing.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC Goldman, Sachs & Co. as the exclusive Remarketing Agent, and, subject to the terms su▇▇▇▇▇ ▇o ▇▇▇ ▇erms and conditions set forth herein, Banc of America Securities LLC Goldman, Sachs & Co. hereby accepts appointment as Remarketing AgentA▇▇▇▇, for ▇or the purpose of (i) Remarketing remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August May 16, 2008 2006 (the “Initial Remarketing Date”"INITIAL REMARKETING DATE"), the Remarketing Agent shall use commercially its reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”"INITIAL REMARKETING") the Remarketed Senior Notes, at a price (the “Remarketing Price”) "REMARKETING PRICE"), based on the Reset Rate, equal to approximately 100.25100.50% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25100.50% in the discretion of the Remarketing Agent, but in no event less than 100.00100.25%, net of any Remarketing Fee and any other fees and commissions) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 June 16, 2006 (the “Final Remarketing Date”"SECOND REMARKETING DATE"), the Remarketing Agent shall use its commercially reasonable efforts to remarket (based the "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 Reset Rate) third Business Day immediately preceding July 16, 2006 (the “Final Remarketing”"THIRD REMARKETING DATE"), the Remarketing Agent shall use its 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 Agent shall use its reasonable efforts to remarket (the "FINAL REMARKETING") the Remarketed Senior Notes at a price (the “Final Remarketing Price”) "FINAL REMARKETING PRICE"), based on the Reset Rate, equal to approximately 100.25100.50% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25100.50% in the discretion of the Remarketing Agent, but in no event less than 100.00100.25%, net of any Remarketing Fee and any other fees and commissions) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100100.25% (net of any Remarketing Fee and any other fees and commissions) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the case of a Remarketing other than the Initial Final Remarketing, or 100.25% (net of any Remarketing Fee and at least 100% any other fees and commissions) of the aggregate principal amount of the Remarketed Senior Notes, Notes in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, that the Senior Notes should bear (the “Reset Rate”"RESET RATE") in order for the Remarketed Senior Notes of the Normal Unit holders 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 Remarketing Agent will enable it 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 Normal 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. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so 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 Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent Agent, the Indenture Trustee and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and;
(ii) 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; and
(iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day business day immediately following the date of such Successful Remarketing in same-same day funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary. The Remarketing Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Pledged Senior Notes underlying the Applicable Ownership Interests in Senior Notes that are components of the Corporate Normal Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 7.06 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 Section 7.06 of the Pledge Agreement.
(i) The right of each holder of Separate Senior Notes or Corporate Normal Units to have Remarketed Senior Notes remarketed and sold on any Remarketing Date shall be subject to the conditions that (i) the Remarketing Agent conducts 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 Agent is 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Remarketed Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Neither the Company nor the Remarketing Agent shall similarly not be obligated in any case to provide funds to make payment upon tender of the Remarketed Senior Notes for Remarketing.
Appears in 1 contract
Sources: Remarketing Agreement (Hartford Financial Services Group Inc/De)
Appointment and Obligations of the Remarketing Agent. (a) The Company hereby appoints Banc of America Securities LLC Goldman, Sachs & Co. as the exclusive Remarketing Agent, and, subject to the terms and conditions set c▇▇▇▇▇▇▇ns ▇▇▇ forth herein, Banc of America Securities LLC Goldman, Sachs & Co. hereby accepts appointment as Remarketing Agent, for the purpose of (i▇) Remarketing ▇▇marketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August November 16, 2008 2005 (the “"Initial Remarketing Date”"), the Remarketing Agent shall use its commercially reasonable best efforts to remarket (based on the Reset Rate) (the “"Initial Remarketing”") the Remarketed Senior Notes, at a price (the “"Remarketing Price”) "), based on the Reset Rate, equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00100%, net of any Remarketing Fee and any other fees and commissions) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 December 16, 2005 (the “Final "Second Remarketing Date”"), the Remarketing Agent shall use its commercially reasonable best efforts to remarket (based on the Reset Rate) (the “Final "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 January 16, 2006 (the "Third Remarketing Date"), the Remarketing Agent shall use its commercially reasonable best efforts to remarket (the "Third Remarketing") the Remarketed 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 Agent shall use its commercially reasonable best efforts to remarket (the "Final Remarketing") the Remarketed Notes at a price (the “"Final Remarketing Price”) "), based on the Reset Rate, equal to approximately 100.25% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00100%, net of any Remarketing Fee and any other fees and commissions) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100% (net of any Remarketing Fee and any other fees and commissions) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the case of a Remarketing other than the Initial Final Remarketing, and at least or 100% (net of any Remarketing Fee and any other fees and commissions) of the aggregate principal amount of the Remarketed Senior Notes, Notes in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-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 Remarketing Agent will enable it 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 (i) be less than the Coupon Rate set forth in the Indenture or (ii) exceed the maximum interest rate permitted by law.
(e) In the event of a Failed Remarketing Remarketing, or if no Senior Notes are included in Corporate Units, 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 timeIndenture.
(f) If, by 4:00 p.m. (p.m., New York City time) , on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, advise by telephone, telephone the Depositary, the Purchase Contract Agent and the Company, and return the Remarketed 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 Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (p.m., New York City time) , on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and;
(ii2) 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; and
(iii3) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day business day immediately following the date of such Successful Remarketing in same-same day funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary. The Remarketing Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 7.06 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 Section 7.06 of the Pledge Agreement.
(i) 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 Agent conducts (A) an 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 Agent is 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Remarketed Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Neither the Company nor the Remarketing Agent shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Remarketed Notes for Remarketing.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The On or before the twentieth Business Day prior to the Initial Remarketing Date (the "APPOINTMENT DATE"), the Company hereby appoints Banc shall send written notice appointing any of America Securities LLC Citigroup, ▇▇▇▇▇▇▇ Sachs or ▇▇▇▇▇▇▇ ▇▇▇▇▇ as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, Banc of America Securities LLC hereby accepts appointment as Remarketing Agent, for the purpose of (i) Remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents. Each of Citigroup, ▇▇▇▇▇▇▇ Sachs and ▇▇▇▇▇▇▇ ▇▇▇▇▇ hereby agree that if the Company chooses to appoint it as the Remarketing Agent, it shall, subject to the terms and conditions set forth herein, accept such appointment by the Company as the exclusive Remarketing Agent.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August May 16, 2008 2006 (the “Initial Remarketing Date”"INITIAL REMARKETING DATE"), the Remarketing Agent shall use commercially its reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”"INITIAL REMARKETING") the Remarketed Senior Notes, at a price (the “Remarketing Price”) "REMARKETING PRICE"), based on the Reset Rate, equal to approximately 100.25(but not less than) 100.50% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 June 16, 2006 (the “Final Remarketing Date”"SECOND REMARKETING DATE"), the Remarketing Agent shall use its commercially reasonable efforts to remarket (based the "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 Reset Rate) third Business Day immediately preceding July 16, 2006 (the “Final Remarketing”"THIRD REMARKETING DATE"), the Remarketing Agent shall use its 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 Agent shall use its reasonable efforts to remarket (the "FINAL REMARKETING") the Remarketed Senior Notes at a price (the “Final Remarketing Price”) "FINAL REMARKETING PRICE"), based on the Reset Rate, equal to approximately 100.25100.50% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent100.50%, but in no event less than 100.00100%, 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 Date, other than the Final Remarketing Date, will be considered successful and no further attempts will be made if the resulting proceeds are at least 100100.25% (net of the Remarketing Fee) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in . It is further understood and agreed that the case of Final Remarketing will be considered successful if the Initial Remarketing, and resulting proceeds are at least 100% (net of the Remarketing Fee) of the aggregate principal amount of the Remarketed Senior Notes, in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, that the Senior Notes should bear (the “Reset Rate”"RESET RATE") in order for the Remarketed Senior Notes of the Corporate Unit holders 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 Remarketing Agent will enable it 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 Indenture, as supplemented from time to time.
(f) If, by 4:00 p.m. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, by telephone, 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 Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and;
(ii2) 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; and
(iii3) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day business day immediately following the date of such Successful Remarketing in same-same day funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary. The Remarketing Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 7.03 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 Section 7.03 of the Pledge Agreement.
(i) 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 Agent conducts 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 Agent is 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Remarketed Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Neither the Company nor the Remarketing Agent shall similarly not be obligated in any case to provide funds to make payment upon tender of the Remarketed Senior Notes for Remarketing.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The On or before the 20th Business Day prior to the Initial Remarketing Date (the "Appointment Date"), the Company hereby appoints Banc shall send written notice appointing any of America Securities LLC UBS, BAS or JPMorgan as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, Banc of America Securities LLC hereby accepts appointment as Remarketing Agent, for the purpose of (i) Remarketing remarketing the Remarketed Senior Notes on behalf of the holders Holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents; provided that if the Company fails to appoint a Remarketing Agent pursuant to this Section 2(a) by the Appointment Date, the Company shall be deemed to have appointed UBS as the Remarketing Agent. Each of UBS, BAS and JPMorgan hereby agree that if the Company chooses to appoint it as the Remarketing Agent, it shall, subject to the terms and conditions set forth herein, accept such appointment by the Company as the exclusive Remarketing Agent.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August November 16, 2008 2005 (the “"Initial Remarketing Date”"), the Remarketing Agent shall use commercially its reasonable efforts to remarket (based on the Reset Rate) (the “"Initial Remarketing”") the Remarketed Senior Notes, at a price (the “"Remarketing Price”) "), based on the Reset Rate, equal to approximately 100.25100.50% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 February 16, 2006 (the “"Final Remarketing Date”"), the Remarketing Agent shall use its commercially reasonable efforts to remarket (based on the Reset Rate) (the “"Final Remarketing”") the Remarketed Senior Notes at a price (the “"Final Remarketing Price”) "), based on the Reset Rate, equal to approximately 100.25100.50% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) 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 will be considered successful and no further attempts will be made if the resulting proceeds are at least 100100.50% of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the case of the an Initial Remarketing, and at least 100Remarketing 100.50% of the aggregate principal amount of the Remarketed Senior Notes, Notes in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, 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 Remarketing Agent will enable it to remarket all of the Remarketed Senior Notes at the Remarketing Price or Final Remarketing Price, as the case may be, in such Remarketing.
(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. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfied, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, by telephone, the Depositary, the Purchase Contract Agent and the Company. Whether or not there has been a Failed Remarketing will be determined in the sole reasonable discretion of the Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and
(ii) 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; and
(iii) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third 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 Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 of the Pledge Agreement.
(i) 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 Agent conducts a Remarketing pursuant to the terms of this Agreement, (ii) a Special Event Redemption has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent is able to find a purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Company shall similarly not be obligated in any case to provide funds to make payment upon tender of the Senior Notes for Remarketing.
Appears in 1 contract
Appointment and Obligations of the Remarketing Agent. (a) The On or before the 20th Business Day prior to the Initial Remarketing Date (the "APPOINTMENT DATE"), the Company hereby appoints Banc shall send written notice appointing any of America Securities LLC Citigroup, ▇▇▇▇▇▇▇ Sachs or ▇▇▇▇▇▇▇ ▇▇▇▇▇ as the exclusive Remarketing Agent, and, subject to the terms and conditions set forth herein, Banc of America Securities LLC hereby accepts appointment as Remarketing Agent, for the purpose of (i) Remarketing the Remarketed Senior Notes on behalf of the holders thereof, (ii) determining, in consultation with the Company, in the manner provided for herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other duties as are assigned to the Remarketing Agent in the Transaction Documents. Each of Citigroup, ▇▇▇▇▇▇▇ Sachs and ▇▇▇▇▇▇▇ ▇▇▇▇▇ hereby agree that if the Company chooses to appoint it as the Remarketing Agent, it shall, subject to the terms and conditions set forth herein, accept such appointment by the Company as the exclusive Remarketing Agent.
(b) Unless a Special Event Redemption has occurred prior to such date, on the third Business Day immediately preceding August May 16, 2008 2006 (the “Initial Remarketing Date”"INITIAL REMARKETING DATE"), the Remarketing Agent shall use commercially its reasonable efforts to remarket (based on the Reset Rate) (the “Initial Remarketing”"INITIAL REMARKETING") the Remarketed Senior Notes, at a price (the “Remarketing Price”) "REMARKETING PRICE"), based on the Reset Rate, equal to approximately 100.25(but not less than) 100.50% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent, but in no event less than 100.00%) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price.
(c) In the case of a Failed Initial 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 June 16, 2006 (the “Final Remarketing Date”"SECOND REMARKETING DATE"), the Remarketing Agent shall use its commercially reasonable efforts to remarket (based the "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 Reset Rate) third Business Day immediately preceding July 16, 2006 (the “Final Remarketing”"THIRD REMARKETING DATE"), the Remarketing Agent shall use its 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 Agent shall use its reasonable efforts to remarket (the "FINAL REMARKETING") the Remarketed Senior Notes at a price (the “Final Remarketing Price”) "FINAL REMARKETING PRICE"), based on the Reset Rate, equal to approximately 100.25100.50% (or, if the Remarketing Agent is unable to remarket the Remarketed Senior Notes at such a rate, at a rate below 100.25% in the discretion of the Remarketing Agent100.50%, but in no event less than 100.00100%, 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 Date, other than the Final Remarketing Date, will be considered successful and no further attempts will be made if the resulting proceeds are at least 100100.25% (net of the Remarketing Fee) of the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in . It is further understood and agreed that the case of Final Remarketing will be considered successful if the Initial Remarketing, and resulting proceeds are at least 100% (net of the Remarketing Fee) of the aggregate principal amount of the Remarketed Senior Notes, in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall determine, in consultation with the Company, the rate per annum, rounded to the nearest one-thousandth (0.001) of one percent per annum, that the Senior Notes should bear (the “Reset Rate”"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 Remarketing Agent will enable it 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 Indenture, as supplemented from time to time.
(f) If, by 4:00 p.m. (New York City time) on the applicable Remarketing Date, (i) the Remarketing Agent is unable to remarket all of the Remarketed Senior Notes at the Remarketing Price or the Final Remarketing Price, as the case may be, pursuant to the terms and conditions hereof or (ii) the Remarketing did not occur on such Remarketing Date because one of the conditions set forth in Section 7 hereof was not satisfiedhereof, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise, by telephone, 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 Remarketing Agent. Promptly following any Failed Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted for remarketing, if any, to the Custodial Agent for distribution to the appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m. (New York City time) on the applicable Remarketing Date, the Remarketing Agent shall advise, by telephone:
(i1) the Depositary, the Purchase Contract Agent and the Company of the Reset Rate determined by the Remarketing Agent in such Remarketing and the number of Remarketed Senior Notes sold in such Remarketing; and;
(ii2) 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; and
(iii3) each such purchaser to give instructions to its Depositary Participant to pay the purchase price on the third Business Day business day immediately following the date of such Successful Remarketing in same-same day funds against delivery of the Remarketed Senior Notes purchased through the facilities of the Depositary. The Remarketing Agent 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.
(h) After deducting any fees specified in Section 4 below, the proceeds from a Successful Remarketing (i) with respect to the Senior Notes that are components of the Corporate Units, shall be paid to the Collateral Agent in accordance with Sections 5.07 and 7.05 7.03 of the Pledge Agreement, as the case may be, and Section 5.02 of the Purchase Contract 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 Purchase Contract Agreement and Sections 5.07 and 7.05 Section 7.03 of the Pledge Agreement.
(i) 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 Agent conducts 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 Agent is 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 Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have any obligation whatsoever to purchase any Remarketed Senior Notes, whether in the Remarketing or otherwise, and shall in no way be obligated to provide funds to make payment upon tender of Remarketed Senior Notes for Remarketing or to otherwise expend or risk its own funds or incur or to be exposed to financial liability in the performance of its duties under this Agreement, and without limitation of the foregoing, the Remarketing Agent shall not be deemed an underwriter of the Remarketed Senior Notes. The Neither the Company nor the Remarketing Agent shall similarly not be obligated in any case to provide funds to make payment upon tender of the Remarketed Senior Notes for Remarketing.
Appears in 1 contract