Remarketing. (i) Unless a Termination Event has occurred prior to the first Remarketing Date, in order to dispose of the Pledged Convertible Notes of any Holders of Corporate Units, who have not notified the Purchase Contract Agent of their intention to effect a Cash Settlement as provided in Section 5.02(a)(i) above, or who have so notified the Purchase Contract Agent but failed to make such payment as required by Section 5.02(a)(ii) above, in each case along with any Separate Convertible Notes, the holders of which have elected to participate in a Remarketing pursuant to clause (c)(ii) below, the Company shall engage the Remarketing Agents pursuant to the Remarketing Agreement to remarket such Convertible Notes on the first Remarketing Date and, unless a Successful Remarketing occurs on such first Remarketing Date, the Company shall engage the Remarketing Agents pursuant to the Remarketing Agreement to remarket such Convertible Notes on the second Remarketing Date. The Purchase Contract Agent, based on the notices specified pursuant to Section 5.02(a)(iv), shall notify the Remarketing Agents in writing, promptly after 5:00 p.m. (New York City time) on the Business Day immediately preceding the Remarketing Date, of the aggregate principal amount of Pledged Convertible Notes that are to be remarketed. Concurrently, the Custodial Agent, based on the notices specified in clause (c)(ii) below, will notify the Remarketing Agents in writing of the aggregate principal amount of Separate Convertible Notes to be remarketed in any Remarketing. Upon receipt of notice from the Purchase Contract Agent as set forth in Section 5.02(b)(i) above and notice of the Separate Convertible Notes (if any) from the Custodial Agent as set forth in Section 5.02(b)(i) above, the Remarketing Agents shall, on the Remarketing Date or Dates, use reasonable efforts to remarket, as provided in the Remarketing Agreement (subject to the execution of a Remarketing Agreement and the satisfaction of the conditions set forth therein), such Convertible Notes and such Separate Convertible Notes at or above the applicable Remarketing Price. (ii) If the Remarketing Agents are able to remarket such Convertible Notes and Separate Convertible Notes (if any) for at least the Remarketing Price in any Remarketing (other than to the Company) in accordance with the Remarketing Agreement (a “Successful Remarketing”), the Collateral Agent shall cause the Securities Intermediary to transfer to the Remarketing Agents (or a designee appointed by them) the remarketed Pledged Convertible Notes upon confirmation of deposit to the Collateral Account of proceeds of such Successful Remarketing attributable to such Convertible Notes, and the Custodial Agent shall transfer the remarketed Separate Convertible Notes to the Remarketing Agents (or a designee appointed by them) upon confirmation of receipt of proceeds of such Successful Remarketing attributable to such Separate Convertible Notes. Settlement shall occur on the Remarketing Settlement Date. Upon deposit in the Collateral Account of such proceeds, the Collateral Agent shall, on the Purchase Contract Settlement Date, upon written direction of the Purchase Contract Agent (which direction shall include the calculation set forth below of the amount to be remitted by the Securities Intermediary), instruct the Securities Intermediary to remit a portion of such proceeds equal to the aggregate principal amount of such Convertible Notes to satisfy in full the Obligations of Holders of Corporate Units to pay the Purchase Price for the shares of Common Stock under the related Purchase Contracts, less the amount of any accrued and unpaid Contract Adjustment Payments payable to such Holders, and promptly remit the balance of such proceeds to the Purchase Contract Agent for payment to the Holders of Corporate Units, whereupon the Purchase Contract Agent shall make such payment on the Purchase Contract Settlement Date Pro Rata in accordance with their respective interests. With respect to any Separate Convertible Notes remarketed, the Custodial Agent shall remit such proceeds of the Successful Remarketing received from the Remarketing Agents pro rata to Holders of such Separate Convertible Notes. For the avoidance of doubt, Holders and holders of Separate Notes participating in a Successful Remarketing shall not be liable for payment of any remarketing fee. (iii) If, in spite of its reasonable efforts, the Remarketing Agents cannot remarket the Convertible Notes on or prior to the second Remarketing Date at a price not less than the Remarketing Price (other than to the Company) or a condition precedent set forth in the Remarketing Agreement is not fulfilled, the remarketing will be deemed to have failed (a “Failed Remarketing”). Following a Failed Remarketing, as of the Purchase Contract Settlement Date, each Holder of any Pledged Convertible Notes, unless such Holder has provided written notice to the Purchase Contract Agent in substantially the form of Exhibit M hereto of its intention to settle the related Purchase Contract with separate cash prior to 5:00 p.m. (New York City time) on the Business Day immediately preceding the Purchase Contract Settlement Date and on or prior to 5:00 p.m. (New York City time) on such Business Day delivered the Purchase Price to the Securities Intermediary for deposit in the Collateral Account in lawful money of the United States by certified or cashiers check or wire transfer in immediately available funds payable to or upon the order of the Securities Intermediary, shall be deemed to have exercised such Holder’s Put Right with respect to the Pledged Convertible Notes and to have elected to apply the Proceeds of the Put Right equal to the aggregate Purchase Price against such Holder’s obligation to pay the aggregate Purchase Price for the shares of Common Stock to be issued under the related Purchase Contracts in full satisfaction of such Holders’ Obligations under such Purchase Contracts. Following such application, if practicable by way of set-off, each such Holder’s Obligations, including to pay the Purchase Price for the shares of Common Stock, will be deemed to be satisfied in full, and upon written instruction from the Purchase Contract Agent, the Collateral Agent shall cause the Securities Intermediary to release the Pledged Convertible Notes from the Collateral Account and shall promptly transfer such Convertible Notes to the Company. Upon (x) receipt by the Collateral Agent of a notice from the Purchase Contract Agent in substantially the form of Exhibit N hereto promptly after the receipt by the Purchase Contract Agent of a notice from a Holder of Corporate Units that such Holder has elected, in accordance with this Section 5.02(b)(iii), to settle the related Purchase Contract with separate cash and (y) payment by such Holder to the Securities Intermediary of the Purchase Price in accordance with the second sentence of this Section 5.02(b)(iii), in lieu of exercise of such Holder’s Put Right, the Securities Intermediary shall give the Purchase Contract Agent notice of the receipt of such payment in substantially the form of Exhibit O hereto and shall (A) invest the separate cash received in Permitted Investments consistent with the instructions of the Company as provided in Section 5.02(a)(v) with respect to Cash Settlement, (B) promptly release from the Pledge the Convertible Notes related to the Corporate Units as to which such Holder has paid such separate cash and (C) promptly Transfer all such Convertible Notes to the Purchase Contract Agent for distribution to such Holder, in each case free and clear of the Pledge created hereby, whereupon the Purchase Contract Agent shall Transfer such Convertible Notes in accordance with written instructions provided by the Holder thereof or, if no such instructions are given to the Purchase Contract Agent by the Holder, the Purchase Contract Agent shall hold such Convertible Notes, and any interest payment thereon, in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder until the expiration of the time period specified in the relevant abandoned property laws of the state where such Convertible Notes and interest payments thereon, if any, are held. Upon maturity of the Permitted Investments on the Purchase Contract Settlement Date, the Collateral Agent shall upon written instruction from the Company, and is hereby authorized to, (A) instruct the Securities Intermediary to remit to the Company on the Purchase Contract Settlement Date such portion of the proceeds of such Permitted Investments as is equal to the aggregate Purchase Price under all Purchase Contracts in respect of which separate cash has been paid as provided in this Section 5.02(b)(iii) (as set forth in the instruction from the Company) to the Company on the Purchase Contract Settlement Date, and (B) release any amounts in excess of such amount earned from such Permitted Investments to the Purchase Contract Agent for distribution to the Holders who have paid such separate cash pro-rata in proportion to the amount paid by such Holders under this Section 5.02(b)(iii).
Appears in 1 contract
Sources: Purchase Contract and Pledge Agreement (Stanley Works)
Remarketing. Agent's Performance; Duty of Care. The duties and obligations of the Remarketing Agent and the Reset Agent shall be determined solely by the express provisions of this Agreement and, in the case of the Remarketing Agent, the Supplemental Remarketing Agreement. No implied covenants or obligations of or against the Remarketing Agent or the Reset Agent shall be read into this Agreement or the Supplemental Remarketing Agreement. In the absence of bad faith on the part of the Remarketing Agent or the Reset Agent, as the case may be, the Remarketing Agent and the Reset Agent each may conclusively rely upon any document furnished to it which purports to conform to the requirements of this Agreement or the Supplemental Remarketing Agreement, as the case may be, as to the truth of the statements expressed therein. Each of the Remarketing Agent and the Reset Agent shall be protected in acting upon any document or communication reasonably believed by it to be signed, presented or made by the proper party or parties. Neither the Remarketing Agent nor the Reset Agent shall have any obligation to determine whether there is any limitation under applicable law on the Reset Rate on the Senior Notes or, if there is any such limitation, the maximum permissible Reset Rate on the Senior Notes, and they shall rely solely upon written notice from the Company and Duke Capital (i) Unless a Termination Event has occurred which the Company and Duke Capital agree to provide prior to the first Remarketing Datetenth Business Day before [ ] , 2004, in order to dispose the case of the Pledged Convertible Notes of any Holders of Corporate UnitsInitial Remarketing, who have not notified the Purchase Contract Agent of their intention to effect a Cash Settlement as provided in Section 5.02(a)(i) above, or who have so notified the Purchase Contract Agent but failed to make such payment as required by Section 5.02(a)(ii) above, in each case along with any Separate Convertible Notes, the holders of which have elected to participate in a Remarketing pursuant to clause (c)(ii) below, the Company shall engage the Remarketing Agents pursuant and prior to the Remarketing Agreement to remarket such Convertible Notes on the first Remarketing Date and, unless a Successful Remarketing occurs on such first Remarketing Date, the Company shall engage the Remarketing Agents pursuant to the Remarketing Agreement to remarket such Convertible Notes on the second Remarketing Date. The Purchase Contract Agent, based on the notices specified pursuant to Section 5.02(a)(iv), shall notify the Remarketing Agents in writing, promptly after 5:00 p.m. (New York City time) on the tenth Business Day immediately preceding the Remarketing Date, of the aggregate principal amount of Pledged Convertible Notes that are to be remarketed. Concurrently, the Custodial Agent, based on the notices specified in clause (c)(ii) below, will notify the Remarketing Agents in writing of the aggregate principal amount of Separate Convertible Notes to be remarketed in any Remarketing. Upon receipt of notice from the Purchase Contract Agent as set forth in Section 5.02(b)(i) above and notice of the Separate Convertible Notes (if any) from the Custodial Agent as set forth in Section 5.02(b)(i) above, the Remarketing Agents shall, on the Remarketing Date or Dates, use reasonable efforts to remarket, as provided in the Remarketing Agreement (subject to the execution of a Remarketing Agreement and the satisfaction of the conditions set forth therein), such Convertible Notes and such Separate Convertible Notes at or above the applicable Remarketing Price.
(ii) If the Remarketing Agents are able to remarket such Convertible Notes and Separate Convertible Notes (if any) for at least the Remarketing Price in any Remarketing (other than to the Company) in accordance with the Remarketing Agreement (a “Successful Remarketing”), the Collateral Agent shall cause the Securities Intermediary to transfer to the Remarketing Agents (or a designee appointed by them) the remarketed Pledged Convertible Notes upon confirmation of deposit to the Collateral Account of proceeds of such Successful Remarketing attributable to such Convertible Notes, and the Custodial Agent shall transfer the remarketed Separate Convertible Notes to the Remarketing Agents (or a designee appointed by them) upon confirmation of receipt of proceeds of such Successful Remarketing attributable to such Separate Convertible Notes. Settlement shall occur on the Remarketing Settlement Date. Upon deposit in the Collateral Account of such proceeds, the Collateral Agent shall, on the before Purchase Contract Settlement Date, upon written direction in the case of the Purchase Contract Secondary Remarketing) as to whether or not there is any such limitation and, if so, the maximum permissible Reset Rate. Neither the Remarketing Agent (which direction shall include nor the calculation set forth below of the amount to be remitted by the Securities Intermediary), instruct the Securities Intermediary to remit a portion of such proceeds equal to the aggregate principal amount of such Convertible Notes to satisfy in full the Obligations of Holders of Corporate Units to pay the Purchase Price for the shares of Common Stock under the related Purchase Contracts, less the amount of any accrued and unpaid Contract Adjustment Payments payable to such Holders, and promptly remit the balance of such proceeds to the Purchase Contract Agent for payment to the Holders of Corporate Units, whereupon the Purchase Contract Reset Agent shall make such payment on incur any liability under this Agreement or the Purchase Contract Settlement Date Pro Rata in accordance with their respective interests. With respect Supplemental Remarketing Agreement to any Separate Convertible Notes remarketedbeneficial owner or holder of Senior Notes, or other securities, either in its individual capacity or as Remarketing Agent or Reset Agent, as the Custodial Agent shall remit such proceeds of the Successful Remarketing received from case may be, for any action or failure to act in connection with the Remarketing Agents pro rata to Holders of such Separate Convertible Notes. For the avoidance of doubt, Holders and holders of Separate Notes participating or otherwise in a Successful Remarketing shall not be liable for payment of any remarketing fee.
(iii) If, in spite of its reasonable efforts, the Remarketing Agents cannot remarket the Convertible Notes on or prior to the second Remarketing Date at a price not less than the Remarketing Price (other than to the Company) or a condition precedent set forth in the Remarketing Agreement is not fulfilled, the remarketing will be deemed to have failed (a “Failed Remarketing”). Following a Failed Remarketing, as of the Purchase Contract Settlement Date, each Holder of any Pledged Convertible Notes, unless such Holder has provided written notice to the Purchase Contract Agent in substantially the form of Exhibit M hereto of its intention to settle the related Purchase Contract with separate cash prior to 5:00 p.m. (New York City time) on the Business Day immediately preceding the Purchase Contract Settlement Date and on or prior to 5:00 p.m. (New York City time) on such Business Day delivered the Purchase Price to the Securities Intermediary for deposit in the Collateral Account in lawful money of the United States by certified or cashiers check or wire transfer in immediately available funds payable to or upon the order of the Securities Intermediary, shall be deemed to have exercised such Holder’s Put Right with respect to the Pledged Convertible Notes and to have elected to apply the Proceeds of the Put Right equal to the aggregate Purchase Price against such Holder’s obligation to pay the aggregate Purchase Price for the shares of Common Stock to be issued under the related Purchase Contracts in full satisfaction of such Holders’ Obligations under such Purchase Contracts. Following such application, if practicable by way of set-off, each such Holder’s Obligations, including to pay the Purchase Price for the shares of Common Stock, will be deemed to be satisfied in full, and upon written instruction from the Purchase Contract Agent, the Collateral Agent shall cause the Securities Intermediary to release the Pledged Convertible Notes from the Collateral Account and shall promptly transfer such Convertible Notes to the Company. Upon (x) receipt by the Collateral Agent of a notice from the Purchase Contract Agent in substantially the form of Exhibit N hereto promptly after the receipt by the Purchase Contract Agent of a notice from a Holder of Corporate Units that such Holder has elected, in accordance with this Section 5.02(b)(iii), to settle the related Purchase Contract with separate cash and (y) payment by such Holder to the Securities Intermediary of the Purchase Price in accordance connection with the second sentence transactions contemplated by this Agreement or the Supplemental Remarketing Agreement. The provisions of this Section 5.02(b)(iii), in lieu 9 shall survive any termination of exercise of such Holder’s Put Right, the Securities Intermediary shall give the Purchase Contract Agent notice of the receipt of such payment in substantially the form of Exhibit O hereto this Agreement and shall (A) invest the separate cash received in Permitted Investments consistent with the instructions of the Company as provided in Section 5.02(a)(v) with respect also continue to Cash Settlement, (B) promptly release from the Pledge the Convertible Notes related apply to the Corporate Units as to which such Holder has paid such separate cash every Remarketing Agent and (C) promptly Transfer all such Convertible Notes to the Purchase Contract Reset Agent for distribution to such Holder, in each case free and clear of the Pledge created hereby, whereupon the Purchase Contract Agent shall Transfer such Convertible Notes in accordance with written instructions provided by the Holder thereof or, if no such instructions are given to the Purchase Contract Agent by the Holder, the Purchase Contract Agent shall hold such Convertible Notes, and any interest payment thereon, in the name of the Purchase Contract Agent hereunder notwithstanding their resignation or its nominee in trust for the benefit of such Holder until the expiration of the time period specified in the relevant abandoned property laws of the state where such Convertible Notes and interest payments thereon, if any, are held. Upon maturity of the Permitted Investments on the Purchase Contract Settlement Date, the Collateral Agent shall upon written instruction from the Company, and is hereby authorized to, (A) instruct the Securities Intermediary to remit to the Company on the Purchase Contract Settlement Date such portion of the proceeds of such Permitted Investments as is equal to the aggregate Purchase Price under all Purchase Contracts in respect of which separate cash has been paid as provided in this Section 5.02(b)(iii) (as set forth in the instruction from the Company) to the Company on the Purchase Contract Settlement Date, and (B) release any amounts in excess of such amount earned from such Permitted Investments to the Purchase Contract Agent for distribution to the Holders who have paid such separate cash pro-rata in proportion to the amount paid by such Holders under this Section 5.02(b)(iii)removal.
Appears in 1 contract
Remarketing. (i) Unless a Termination Event has occurred prior to If Lessee does not elect the first Remarketing DateRenewal Option or Purchase Option for this Lease, in order to dispose of the Pledged Convertible Notes of any Holders of Corporate Units, who have not notified the Purchase Contract Agent of their intention to effect a Cash Settlement as provided in Section 5.02(a)(i) above, or who have so notified the Purchase Contract Agent but failed to make such payment as required by Section 5.02(a)(ii) above, in each case along with any Separate Convertible Notes, the holders of which have elected to participate in a Remarketing pursuant to clause (c)(ii) below, the Company then Lessee shall engage the Remarketing Agents pursuant to the Remarketing Agreement to remarket such Convertible Notes on the first Remarketing Date and, unless a Successful Remarketing occurs on such first Remarketing Date, the Company shall engage the Remarketing Agents pursuant to the Remarketing Agreement to remarket such Convertible Notes on the second Remarketing Date. The Purchase Contract Agent, based on the notices specified pursuant to Section 5.02(a)(iv), shall notify the Remarketing Agents in writing, promptly after 5:00 p.m. (New York City time) on the Business Day immediately preceding the Remarketing Date, of the aggregate principal amount of Pledged Convertible Notes that are to be remarketed. Concurrently, the Custodial Agent, based on the notices specified in clause (c)(ii) below, will notify the Remarketing Agents in writing of the aggregate principal amount of Separate Convertible Notes to be remarketed in any Remarketing. Upon receipt of notice from the Purchase Contract Agent as set forth in Section 5.02(b)(i) above and notice of the Separate Convertible Notes (if any) from the Custodial Agent as set forth in Section 5.02(b)(i) above, the Remarketing Agents shall, on the Remarketing Date or Dates, use commercially reasonable efforts to remarketon a non-discriminatory, non-priority “as provided in the Remarketing Agreement (subject to the execution of a Remarketing Agreement and the satisfaction of the conditions set forth therein), such Convertible Notes and such Separate Convertible Notes at or above the applicable Remarketing Price.
(ii) If the Remarketing Agents are able to remarket such Convertible Notes and Separate Convertible Notes (if any) for at least the Remarketing Price in any Remarketing (other than to the Company) in accordance with the Remarketing Agreement (a “Successful Remarketing”), the Collateral Agent shall cause the Securities Intermediary to transfer to the Remarketing Agents (or a designee appointed by them) the remarketed Pledged Convertible Notes upon confirmation of deposit to the Collateral Account of proceeds of such Successful Remarketing attributable to such Convertible Notes, and the Custodial Agent shall transfer the remarketed Separate Convertible Notes to the Remarketing Agents (or a designee appointed by them) upon confirmation of receipt of proceeds of such Successful Remarketing attributable to such Separate Convertible Notes. Settlement shall occur on the Remarketing Settlement Date. Upon deposit in the Collateral Account of such proceeds, the Collateral Agent shall, on the Purchase Contract Settlement Date, upon written direction of the Purchase Contract Agent (which direction shall include the calculation set forth below of the amount to be remitted by the Securities Intermediary), instruct the Securities Intermediary to remit a portion of such proceeds equal to the aggregate principal amount of such Convertible Notes to satisfy in full the Obligations of Holders of Corporate Units to pay the Purchase Price for the shares of Common Stock under the related Purchase Contracts, less the amount of any accrued and unpaid Contract Adjustment Payments payable to such Holders, and promptly remit the balance of such proceeds to the Purchase Contract Agent for payment to the Holders of Corporate Units, whereupon the Purchase Contract Agent shall make such payment on the Purchase Contract Settlement Date Pro Rata in accordance with their respective interests. With respect to any Separate Convertible Notes remarketed, the Custodial Agent shall remit such proceeds of the Successful Remarketing received from the Remarketing Agents pro rata to Holders of such Separate Convertible Notes. For the avoidance of doubt, Holders and holders of Separate Notes participating in a Successful Remarketing shall not be liable for payment of any remarketing fee.
(iii) If, in spite of its reasonable efforts, the Remarketing Agents cannot remarket the Convertible Notes on or prior to the second Remarketing Date at a price not less than the Remarketing Price (other than to the Company) or a condition precedent set forth in the Remarketing Agreement is not fulfilled, the remarketing will be deemed to have failed (a “Failed Remarketing”). Following a Failed Remarketing, as of the Purchase Contract Settlement Date, each Holder of any Pledged Convertible Notes, unless such Holder has provided written notice to the Purchase Contract Agent in substantially the form of Exhibit M hereto of its intention to settle the related Purchase Contract with separate cash prior to 5:00 p.m. (New York City time) on the Business Day immediately preceding the Purchase Contract Settlement Date and on or prior to 5:00 p.m. (New York City time) on such Business Day delivered the Purchase Price to the Securities Intermediary for deposit in the Collateral Account in lawful money of the United States by certified or cashiers check or wire transfer in immediately available funds payable to or upon the order of the Securities Intermediary, shall be deemed to have exercised such Holder’s Put Right with respect to the Pledged Convertible Notes and to have elected to apply the Proceeds of the Put Right equal to the aggregate Purchase Price against such Holder’s obligation to pay the aggregate Purchase Price for the shares of Common Stock to be issued under the related Purchase Contracts in full satisfaction of such Holders’ Obligations under such Purchase Contracts. Following such application, if practicable by way of set-off, each such Holder’s Obligations, including to pay the Purchase Price for the shares of Common Stock, will be deemed to be satisfied in full, and upon written instruction from the Purchase Contract Agent, the Collateral Agent shall cause the Securities Intermediary to release the Pledged Convertible Notes from the Collateral Account and shall promptly transfer such Convertible Notes to the Company. Upon (x) receipt by the Collateral Agent of a notice from the Purchase Contract Agent in substantially the form of Exhibit N hereto promptly after the receipt by the Purchase Contract Agent of a notice from a Holder of Corporate Units that such Holder has elected, in accordance with this Section 5.02(b)(iii)is” basis, to settle assist Lessor in remarketing the related Purchase Contract with separate cash and Equipment for one-hundred eighty (y180) payment by such Holder to the Securities Intermediary of the Purchase Price in accordance with the second sentence of this Section 5.02(b)(iii), in lieu of exercise of such Holder’s Put Right, the Securities Intermediary shall give the Purchase Contract Agent notice of the receipt of such payment in substantially the form of Exhibit O hereto and shall (A) invest the separate cash received in Permitted Investments consistent with the instructions of the Company as provided in Section 5.02(a)(v) with respect to Cash Settlement, (B) promptly release from the Pledge the Convertible Notes related to the Corporate Units as to which such Holder has paid such separate cash and (C) promptly Transfer all such Convertible Notes to the Purchase Contract Agent for distribution to such Holder, in each case free and clear of the Pledge created hereby, whereupon the Purchase Contract Agent shall Transfer such Convertible Notes in accordance with written instructions provided by the Holder thereof or, if no such instructions are given to the Purchase Contract Agent by the Holder, the Purchase Contract Agent shall hold such Convertible Notes, and any interest payment thereon, in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder until days following the expiration of the Initial Term or any Renewal Term of this Lease (the “Remarketing Period”). In connection with the foregoing remarketing obligations, Lessor may elect, by written notice to Lessee (“Service Notice”), that Lessee arrange one or more remarketing services specified by Lessor from time period specified to time in the relevant abandoned property laws writing, such remarketing services, if obtained, to be at Lessor’s sole cost as a remarketing expense (including both third party costs incurred by Lessee and a reasonable estimate of in house expenses incurred by Lessee; provided, however, that items with a cost over $5,000 shall require Lessor’s consent), which may include (i) arranging for removal of the state where such Convertible Notes Equipment; (ii) Equipment inspections and interest payments thereoninventory; (iii) Equipment de-installation and installation, if any, are held. Upon maturity as necessary; (iv) refurbishment of the Permitted Investments on Equipment; (v) appraisal of the Purchase Contract Settlement DateEquipment; (vi) Equipment maintenance services; (vii) arranging for Equipment maintenance certification; and/or (viii) providing and/or securing necessary Equipment license(s) and maintenance for a new purchaser or lessee. If, following the Collateral Agent receipt of the Service Notice, Lessee shall upon written instruction from in good faith determine that it is not feasible to perform any or all of the Companyforegoing services or that such performance could expose Lessee to unreasonable liability, then Lessee shall promptly notify Lessor in writing, whereupon Lessee shall have no further obligation to arrange for the performance of such services. In connection with any services performed by Lessee pursuant to this Section 15, Lessee shall (i) hold any Equipment that Lessee takes possession of, or control over, as bailee, and is hereby authorized to, (A) instruct the Securities Intermediary to remit to the Company on the Purchase Contract Settlement Date such portion of the proceeds of such Permitted Investments not as is equal to the aggregate Purchase Price under all Purchase Contracts in respect of which separate cash has been paid as provided in this Section 5.02(b)(iii) (as set forth in the instruction from the Company) to the Company on the Purchase Contract Settlement Dateconsignee, and (Bii) release be responsible for, and hereby indemnifies and holds Lessor harmless from and against, any amounts in excess and all damage to or loss of such amount earned from such Permitted Investments the Equipment to the Purchase Contract Agent for distribution extent such damage or loss is related to the Holders who gross negligence or willful misconduct of Lessee. Lessee shall be, and shall at all times remain, an independent contractor with regard to its obligations hereunder. In performing its remarketing obligations, Lessee may not pledge the credit of, or to enter into any contract or financing arrangement for, Lessor; it being agreed that Lessee has not been granted any property interest in any intellectual property (including, without limitation, the corporate name, trademarks or trade names) of Lessor. In this regard, ▇▇▇▇▇▇ has no power or ________________________________________ authority, express or implied, to bind or otherwise obligate Lessor in any manner with respect to a sale, lease or other disposition of the Equipment. Any proposal or offer submitted by Lessee with respect thereto to any third-party shall state that it is conditioned upon the written approval of Lessor. In this regard, Lessor expressly reserves the right to approve or reject any offer or proposal, or portion thereof, made by Lessee or any third party, which approval or rejection shall not be unreasonably withheld or delayed. If any offer is approved by Lessor, in its sole and absolute discretion, the transaction(s) contemplated in such offer or proposal shall be consummated solely and directly between Lessor, in Lessor’s (or its nominee’s or designee’s) name, and the applicable purchaser or lessee. Any offer or proposal rejection shall not relieve Lessee of its obligations to continue to remarket the Equipment. In the event that Lessee is unable to sell or otherwise dispose of the Equipment during the Remarketing Period under terms and conditions reasonably acceptable to Lessor, then Lessor may remarket the Equipment within its sole and absolute discretion. In this event, Lessee shall deliver and/or make storage arrangements, as a remarketing expense, for any applicable Equipment as directed by ▇▇▇▇▇▇ in writing but shall otherwise have paid such separate cash pro-rata in proportion to the amount paid by such Holders under this Section 5.02(b)(iii)no further obligation hereunder.
Appears in 1 contract
Sources: Lease Agreement
Remarketing. (a) You shall not engage in any remarketing efforts (i) Unless a Termination Event has occurred prior to the first Remarketing Date, in order to dispose earlier of 9 months after the consummation of the Pledged Convertible Notes Company's initial High Yield Offering and January 1, 2001, with respect to any assignment of any Holders Unused Commitment related to the Series A Note Commitment or any Series A Notes and (ii) prior to the earlier of Corporate Units9 months after the consummation of the Company's initial High Yield Offering and June 30, who have not notified 2000, with respect to any assignment of any Unused Commitment related to the Purchase Contract Agent of their intention to effect a Cash Settlement Series B Note Commitment or any Series B Notes except as provided in Section 5.02(a)(ithis section. Prior to such time, you may request that the Company shorten the period in which you are restricted from remarketing the Notes. The Company will consider any such request and will not object to any such request if it concludes (in the exercise of its business judgement based on such criteria as it considers appropriate) abovethat any such remarketing will not impair the ability of the Company to any High Yield Offering. The restrictions set forth in this section 24 shall not apply to any remarketing of the Notes to any of your Affiliates.
(b) You shall provide the Company at least with 60 days prior written notice (a "Remarketing Notice") if you wish the Company to assist in any transfer or assignment of any amount of the Commitments or the Notes or if the Five-Year No-Call (as defined below) will be applicable to the Notes being so assigned (a "Remarketing Transfer"). Upon receipt of a Remarketing Notice, the Company and its Subsidiaries shall cooperate with you and your underwriters or who have so notified agents in each remarketing effort undertaken by you. Such cooperation shall include, if requested by you, (i) the Purchase Contract Agent but failed Company providing customary information in respect of the Company and its Subsidiaries and making customary representations and warranties with respect to make such payment as information in connection with any Offering and, if required by Section 5.02(a)(iithe Securities Act, the Company acting as co-registrant, issuer or co-issuer of such Offering, (ii) abovesenior officers of the Company and its Subsidiaries participating to a reasonable degree and upon reasonable prior notice, in each case along the "road show" for any Offering or in meetings with prospective transferees or assignees of the Notes and, (iii) appropriate personnel from the Company and its Subsidiaries assisting in the drafting of a registration statement or offering circular used in marketing of any Offering; provided that the Company may elect to combine the -------- registration of such Offering with the registration of any of the Company's other High Yield Debt. The Company will promptly after delivery of a Remarketing Notice, upon your request, direct its counsel (i) to prepare required documentation for Refinancing Securities and/or any required amendments to this Agreement to permit a Remarketing Transfer or (ii) to review any such documentation prepared by your counsel, and the Company will work diligently with you to finalize such documentation and issue such Refinancing Securities in the manner you request.
(c) In connection with any Separate Convertible Remarketing Transfer involving a sale of Notes, the holders of which the Notes or Refinancing Securities that are the subject of such Remarketing Transfer shall, if you so request, be granted the right to decline any optional or mandatory prepayments of such Notes or Refinancing Securities (excluding regularly scheduled installments of principal) for a period of up to five years from the date of consummation of such Remarketing Transfer (the "Five-Year No-Call").
(d) If you have elected to participate in not completed a Remarketing pursuant Transfer for all the Series A Notes and the Series B Notes then outstanding prior to clause (c)(ii) belowJanuary 1, 2003, then the Company shall engage will pay you up to 3% of the Remarketing Agents pursuant then outstanding principal amount of all Notes to defray any actual marketing distribution and other costs incurred by you in connection with any such remarketing.
(e) At any time after the Remarketing Agreement earlier to remarket such Convertible Notes on occur of (i) the first Remarketing Date and, unless a Successful Remarketing occurs on such first Remarketing Date, the Company shall engage the Remarketing Agents pursuant to the Remarketing Agreement to remarket such Convertible Notes on the second Remarketing Date. The Purchase Contract Agent, based on the notices specified pursuant to Section 5.02(a)(iv), shall notify the Remarketing Agents in writing, promptly after 5:00 p.m. (New York City time) on the Business Day immediately preceding the Remarketing Date, disposition by you of more than 50% of the aggregate principal amount of Pledged Convertible the Series A Notes that are to be remarketed. Concurrently, the Custodial Agent, based on the notices specified in clause (c)(ii) below, will notify the Remarketing Agents in writing of the aggregate principal amount of Separate Convertible or Series B Notes to be remarketed in any Remarketing. Upon receipt of notice from the Purchase Contract Agent as set forth in Section 5.02(b)(i) above then outstanding and notice of the Separate Convertible Notes (if any) from the Custodial Agent as set forth in Section 5.02(b)(i) above, the Remarketing Agents shall, on the Remarketing Date or Dates, use reasonable efforts to remarket, as provided in the Remarketing Agreement (subject to the execution of a Remarketing Agreement and the satisfaction of the conditions set forth therein), such Convertible Notes and such Separate Convertible Notes at or above the applicable Remarketing Price.
(ii) If January 1, 2001, you or the Remarketing Agents are able to remarket such Convertible Notes and Separate Convertible Notes (if any) for at least Required Holders may request the Remarketing Price issuance of Refinancing Securities in any Remarketing (other than to the Company) in accordance with the Remarketing Agreement (a “Successful Remarketing”), the Collateral Agent shall cause the Securities Intermediary to transfer to the Remarketing Agents (or a designee appointed by them) the remarketed Pledged Convertible Notes upon confirmation of deposit to the Collateral Account of proceeds place of such Successful Remarketing attributable to such Convertible Series A Notes or Series B Notes, and the Custodial Agent shall transfer the remarketed Separate Convertible Notes to the Remarketing Agents (or a designee appointed by them) upon confirmation of receipt of proceeds of such Successful Remarketing attributable to such Separate Convertible Notes. Settlement shall occur on the Remarketing Settlement Date. Upon deposit in the Collateral Account of such proceeds, the Collateral Agent shall, on the Purchase Contract Settlement Date, upon written direction of the Purchase Contract Agent (which direction shall include the calculation set forth below of the amount to be remitted by the Securities Intermediary), instruct the Securities Intermediary to remit a portion of such proceeds equal to the aggregate principal amount of such Convertible Notes to satisfy in full the Obligations of Holders of Corporate Units to pay the Purchase Price for the shares of Common Stock under the related Purchase Contracts, less the amount of any accrued and unpaid Contract Adjustment Payments payable to such Holders, and promptly remit the balance of such proceeds to the Purchase Contract Agent for payment to the Holders of Corporate Units, whereupon the Purchase Contract Agent shall make such payment on the Purchase Contract Settlement Date Pro Rata in accordance with their respective interests. With respect to any Separate Convertible Notes remarketed, the Custodial Agent shall remit such proceeds of the Successful Remarketing received from the Remarketing Agents pro rata to Holders of such Separate Convertible Notes. For the avoidance of doubt, Holders and holders of Separate Notes participating in a Successful Remarketing shall not be liable for payment of any remarketing feeas applicable.
(iii) If, in spite of its reasonable efforts, the Remarketing Agents cannot remarket the Convertible Notes on or prior to the second Remarketing Date at a price not less than the Remarketing Price (other than to the Company) or a condition precedent set forth in the Remarketing Agreement is not fulfilled, the remarketing will be deemed to have failed (a “Failed Remarketing”). Following a Failed Remarketing, as of the Purchase Contract Settlement Date, each Holder of any Pledged Convertible Notes, unless such Holder has provided written notice to the Purchase Contract Agent in substantially the form of Exhibit M hereto of its intention to settle the related Purchase Contract with separate cash prior to 5:00 p.m. (New York City time) on the Business Day immediately preceding the Purchase Contract Settlement Date and on or prior to 5:00 p.m. (New York City time) on such Business Day delivered the Purchase Price to the Securities Intermediary for deposit in the Collateral Account in lawful money of the United States by certified or cashiers check or wire transfer in immediately available funds payable to or upon the order of the Securities Intermediary, shall be deemed to have exercised such Holder’s Put Right with respect to the Pledged Convertible Notes and to have elected to apply the Proceeds of the Put Right equal to the aggregate Purchase Price against such Holder’s obligation to pay the aggregate Purchase Price for the shares of Common Stock to be issued under the related Purchase Contracts in full satisfaction of such Holders’ Obligations under such Purchase Contracts. Following such application, if practicable by way of set-off, each such Holder’s Obligations, including to pay the Purchase Price for the shares of Common Stock, will be deemed to be satisfied in full, and upon written instruction from the Purchase Contract Agent, the Collateral Agent shall cause the Securities Intermediary to release the Pledged Convertible Notes from the Collateral Account and shall promptly transfer such Convertible Notes to the Company. Upon (x) receipt by the Collateral Agent of a notice from the Purchase Contract Agent in substantially the form of Exhibit N hereto promptly after the receipt by the Purchase Contract Agent of a notice from a Holder of Corporate Units that such Holder has elected, in accordance with this Section 5.02(b)(iii), to settle the related Purchase Contract with separate cash and (y) payment by such Holder to the Securities Intermediary of the Purchase Price in accordance with the second sentence of this Section 5.02(b)(iii), in lieu of exercise of such Holder’s Put Right, the Securities Intermediary shall give the Purchase Contract Agent notice of the receipt of such payment in substantially the form of Exhibit O hereto and shall (A) invest the separate cash received in Permitted Investments consistent with the instructions of the Company as provided in Section 5.02(a)(v) with respect to Cash Settlement, (B) promptly release from the Pledge the Convertible Notes related to the Corporate Units as to which such Holder has paid such separate cash and (C) promptly Transfer all such Convertible Notes to the Purchase Contract Agent for distribution to such Holder, in each case free and clear of the Pledge created hereby, whereupon the Purchase Contract Agent shall Transfer such Convertible Notes in accordance with written instructions provided by the Holder thereof or, if no such instructions are given to the Purchase Contract Agent by the Holder, the Purchase Contract Agent shall hold such Convertible Notes, and any interest payment thereon, in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder until the expiration of the time period specified in the relevant abandoned property laws of the state where such Convertible Notes and interest payments thereon, if any, are held. Upon maturity of the Permitted Investments on the Purchase Contract Settlement Date, the Collateral Agent shall upon written instruction from the Company, and is hereby authorized to, (A) instruct the Securities Intermediary to remit to the Company on the Purchase Contract Settlement Date such portion of the proceeds of such Permitted Investments as is equal to the aggregate Purchase Price under all Purchase Contracts in respect of which separate cash has been paid as provided in this Section 5.02(b)(iii) (as set forth in the instruction from the Company) to the Company on the Purchase Contract Settlement Date, and (B) release any amounts in excess of such amount earned from such Permitted Investments to the Purchase Contract Agent for distribution to the Holders who have paid such separate cash pro-rata in proportion to the amount paid by such Holders under this Section 5.02(b)(iii).
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Remarketing. (i) Unless a Termination Event special event redemption or a termination event has occurred prior to occurred, or all the first Remarketing Datestock purchase contracts have settled early as a result of an early settlement or an early settlement upon a cash merger, in order to dispose or all of the Pledged Convertible Notes outstanding PEPS Units are held in the form of any Holders Treasury Units and none of the holders of the related trust preferred securities has elected to participate in the remarketing, as described under “Description of the Trust Preferred Securities—Remarketing,” or all of the holders of PEPS Units have settled their stock purchase contracts with separate cash, as described above under “—Notice to Settle with Cash,” and none of the holders of the related trust preferred securities have elected to participate in the remarketing, we, through the remarketing agent, will attempt to remarket the trust preferred securities in a process we call “remarketing.” All of the outstanding trust preferred securities held as part of Corporate Units, who have not notified Units will be remarketed in the Purchase Contract Agent of their intention to effect a Cash Settlement as provided in Section 5.02(a)(i) above, or who have so notified the Purchase Contract Agent but failed to make such payment as required by Section 5.02(a)(ii) above, in each case along with any Separate Convertible Notes, remarketing other than those the holders of which have elected (i) not to participate in a Remarketing pursuant to clause (c)(ii) below, the Company shall engage the Remarketing Agents pursuant to the Remarketing Agreement to remarket such Convertible Notes on the first Remarketing Date and, unless a Successful Remarketing occurs on such first Remarketing Date, the Company shall engage the Remarketing Agents pursuant to the Remarketing Agreement to remarket such Convertible Notes on the second Remarketing Date. The Purchase Contract Agent, based on the notices specified pursuant to Section 5.02(a)(iv), shall notify the Remarketing Agents in writing, promptly after 5:00 p.m. (New York City time) on the Business Day immediately preceding the Remarketing Date, of the aggregate principal amount of Pledged Convertible Notes that are to be remarketed. Concurrently, the Custodial Agent, based on the notices specified in clause (c)(ii) below, will notify the Remarketing Agents in writing of the aggregate principal amount of Separate Convertible Notes to be remarketed in any Remarketing. Upon receipt of notice from the Purchase Contract Agent as set forth in Section 5.02(b)(i) above remarketing and notice of the Separate Convertible Notes (if any) from the Custodial Agent as set forth in Section 5.02(b)(i) above, the Remarketing Agents shall, on the Remarketing Date or Dates, use reasonable efforts to remarket, as provided in the Remarketing Agreement (subject to the execution of a Remarketing Agreement and the satisfaction of the conditions set forth therein), such Convertible Notes and such Separate Convertible Notes at or above the applicable Remarketing Price.
(ii) If the Remarketing Agents are able to remarket such Convertible Notes and Separate Convertible Notes (if any) for at least the Remarketing Price in any Remarketing (other than to the Company) in accordance with the Remarketing Agreement (a “Successful Remarketing”), the Collateral Agent shall cause the Securities Intermediary to transfer to the Remarketing Agents (or a designee appointed by them) the remarketed Pledged Convertible Notes upon confirmation of deposit to the Collateral Account of proceeds of such Successful Remarketing attributable to such Convertible Notes, and the Custodial Agent shall transfer the remarketed Separate Convertible Notes to the Remarketing Agents (or a designee appointed by them) upon confirmation of receipt of proceeds of such Successful Remarketing attributable to such Separate Convertible Notes. Settlement shall occur on the Remarketing Settlement Date. Upon deposit in the Collateral Account of such proceeds, the Collateral Agent shall, on the Purchase Contract Settlement Date, upon written direction of the Purchase Contract Agent (which direction shall include the calculation set forth below of the amount to be remitted by the Securities Intermediary), instruct the Securities Intermediary to remit a portion of such proceeds equal to the aggregate principal amount of such Convertible Notes to satisfy in full the Obligations of Holders of Corporate Units to pay the Purchase Price for the shares of Common Stock under the related Purchase Contracts, less the amount of any accrued and unpaid Contract Adjustment Payments payable to such Holders, and promptly remit the balance of such proceeds to the Purchase Contract Agent for payment to the Holders of Corporate Units, whereupon the Purchase Contract Agent shall make such payment on the Purchase Contract Settlement Date Pro Rata in accordance with their respective interests. With respect to any Separate Convertible Notes remarketed, the Custodial Agent shall remit such proceeds of the Successful Remarketing received from the Remarketing Agents pro rata to Holders of such Separate Convertible Notes. For the avoidance of doubt, Holders and holders of Separate Notes participating in a Successful Remarketing shall not be liable for payment of any remarketing fee.
(iii) If, in spite of its reasonable efforts, the Remarketing Agents cannot remarket the Convertible Notes on or prior to the second Remarketing Date at a price not less than the Remarketing Price (other than to the Company) or a condition precedent set forth in the Remarketing Agreement is not fulfilled, the remarketing will be deemed to have failed (a “Failed Remarketing”). Following a Failed Remarketing, as of the Purchase Contract Settlement Date, each Holder of any Pledged Convertible Notes, unless such Holder has provided written notice to the Purchase Contract Agent in substantially the form of Exhibit M hereto of its intention to settle the related Purchase Contract stock purchase contract with separate cash prior cash, whether or not the remarketing is successful. See “Description of the Stock Purchase Contracts—Notice to 5:00 p.m. (New York City time) Settle with Cash.” If you hold trust preferred securities separately and not as part of the Corporate Units, your trust preferred securities will not be remarketed unless you elect to participate in the remarketing. After any successful remarketing, the interest rate, interest payment dates and other terms of each series of the underlying junior subordinated debentures may change, as a result of which the distribution rate on and certain other terms of all of the Business Day immediately preceding related trust preferred securities may also change, even those that were not included in the Purchase Contract Settlement Date and remarketing. See “Description of the Junior Subordinated Debentures—Remarketing.” Under the remarketing agreement, on or prior to 5:00 p.m. (p.m., New York City time) , on such Business Day delivered the Purchase Price to second business day immediately preceding the Securities Intermediary for deposit in the Collateral Account in lawful money beginning of any remarketing period holders of the United States by certified or cashiers check or wire transfer in immediately available funds payable to or upon the order trust preferred securities not held as part of the Securities Intermediary, shall be deemed to have exercised such Holder’s Put Right with respect to the Pledged Convertible Notes and to have elected to apply the Proceeds of the Put Right equal to the aggregate Purchase Price against such Holder’s obligation to pay the aggregate Purchase Price for the shares of Common Stock to be issued under the related Purchase Contracts in full satisfaction of such Holders’ Obligations under such Purchase Contracts. Following such application, if practicable by way of set-off, each such Holder’s Obligations, including to pay the Purchase Price for the shares of Common Stock, will be deemed to be satisfied in full, and upon written instruction from the Purchase Contract Agent, the Collateral Agent shall cause the Securities Intermediary to release the Pledged Convertible Notes from the Collateral Account and shall promptly transfer such Convertible Notes to the Company. Upon (x) receipt by the Collateral Agent of a notice from the Purchase Contract Agent in substantially the form of Exhibit N hereto promptly after the receipt by the Purchase Contract Agent of a notice from a Holder series of Corporate Units that such Holder has elected, may elect to have their trust preferred securities included in accordance with this Section 5.02(b)(iii), to settle the related Purchase Contract with separate cash remarketing and (y) payment by such Holder to remarketed in the Securities Intermediary same manner and at the same price as the trust preferred securities held as part of the Purchase Price in accordance with the second sentence of this Section 5.02(b)(iii), in lieu of exercise of such Holder’s Put Right, the Securities Intermediary shall give the Purchase Contract Agent notice of the receipt of such payment in substantially the form of Exhibit O hereto and shall (A) invest the separate cash received in Permitted Investments consistent with the instructions of the Company as provided in Section 5.02(a)(v) with respect to Cash Settlement, (B) promptly release from the Pledge the Convertible Notes related to the Corporate Units as to which such Holder has paid such separate cash and (C) promptly Transfer all such Convertible Notes by delivering their trust preferred securities along with a notice to the Purchase Contract Agent for distribution to such Holdercollateral agent. The collateral agent will hold these trust preferred securities or their proceeds, as the case may be, in each case free and clear an account separate from the collateral account in which the securities pledged to secure the obligations of the Pledge created herebyholders of Corporate Units under the stock purchase contracts will be held. Holders of the trust preferred securities electing to have their trust preferred securities remarketed will also have the right to withdraw that election on or prior to 5:00 p.m., whereupon New York City time, on the Purchase Contract Agent shall Transfer second business day immediately preceding the beginning of any remarketing period. If the remarketing agent cannot remarket a series of trust preferred securities during any remarketing period, the remarketing agent will promptly return such Convertible Notes in accordance with written instructions provided by the Holder thereof or, if no such instructions are given trust preferred securities not held as part of Corporate Units to the Purchase Contract Agent by collateral agent for release to the Holderholders. If the remarketing of any series of trust preferred securities is successful, the Purchase Contract Agent shall hold such Convertible Notes, and any interest payment thereon, in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder until the expiration of the time period specified in the relevant abandoned property laws of the state where such Convertible Notes and interest payments thereon, if any, are held. Upon maturity of the Permitted Investments on the Purchase Contract Settlement Date, the Collateral Agent shall upon written instruction from the Company, and is hereby authorized to, (A) instruct the Securities Intermediary to remarketing agent will remit to the Company on the Purchase Contract Settlement Date such portion of collateral agent the proceeds of such Permitted Investments remarketing for payment to such participating holders of trust preferred securities not held as is equal to the aggregate Purchase Price under all Purchase Contracts in respect part of which separate cash has been paid as provided in this Section 5.02(b)(iii) (as set forth in the instruction from the Company) to the Company on the Purchase Contract Settlement Date, and (B) release any amounts in excess of such amount earned from such Permitted Investments to the Purchase Contract Agent for distribution to the Holders who have paid such separate cash pro-rata in proportion to the amount paid by such Holders under this Section 5.02(b)(iii)Corporate Units.
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Remarketing. (ia) Unless At any time following November 30, 2022, unless a Termination Event Competing Remarketing is occurring and has occurred prior to the first Remarketing Date, in order to dispose of the Pledged Convertible Notes of any Holders of Corporate Units, who have not notified the Purchase Contract Agent of their intention to effect a Cash Settlement as provided in Section 5.02(a)(i) above, or who have so notified the Purchase Contract Agent but failed to make such payment as required by Section 5.02(a)(ii) above, in each case along with any Separate Convertible Notesterminated, the holders of which have elected Original Holders may elect, at their option, to participate in a Remarketing pursuant to clause (c)(ii) below, cause the Company shall to engage the Remarketing Agents pursuant to Agent(s) on either a “best efforts” or firm commitment basis at the option of the Company and enter into the Remarketing Agreement to remarket the Series A Shares in accordance with this Section 11 (a “Remarketing”). Each electing Original Holder (collectively, the “Participating Holders”) may have all, but not less than all, of their Series A Shares remarketed in such Convertible Notes on Remarketing by delivering such Series A Shares, along with written notice of their election (a “Remarketing Notice”), to the first Company and the Transfer Agent. The Remarketing Date andAgent(s) shall be selected by the Company, unless in consultation with the Original Holders, pursuant to Section 11(l). The Original Holders may, as a Successful group, only cause one Remarketing occurs on such first pursuant to this Section 11; provided, that following each Unsuccessful Remarketing Datehereunder, the Original Holders, as a group, shall be permitted to cause another Remarketing; provided, further, that any remarketing pursuant to Section 11(h) of the Series B Certificate of Designations in which the Original Holders elect to participate shall not be deemed a Remarketing for the purposes of this Certificate of Designations. Nothing in this Section 11 shall preclude the Company from exercising its redemption rights under Section 6(a) at any time permitted thereunder.
(b) Upon receipt of any Remarketing Notice, the Company shall use its reasonable best efforts to engage the Remarketing Agents pursuant to Agent(s) and enter into the Remarketing Agreement to remarket as promptly as practicable, but in any event within 30 days after receipt of such Convertible Notes on Remarketing Notice (the second Remarketing Date“Engagement Deadline”). The Purchase Contract Agent, based on the notices specified pursuant to Section 5.02(a)(iv), Company shall notify the Remarketing Agents in writing, promptly after 5:00 p.m. (New York City timeAgent(s) on the Business Day immediately preceding the Remarketing Date, of the aggregate principal amount of Pledged Convertible Notes that are to be remarketed. Concurrently, the Custodial Agent, based on the notices specified in clause (c)(ii) below, will notify the Remarketing Agents in writing of the aggregate principal amount number of Separate Convertible Notes Series A Shares to be remarketed in any and shall provide such other information and cooperation to the Remarketing Agent(s) as is reasonably necessary or desirable to conduct the Remarketing. Upon receipt .
(c) The Company shall cause the Remarketing to be conducted over a period of notice from up to 10 consecutive Business Days (or such longer period as the Purchase Contract Agent as set forth in Section 5.02(b)(i) above and notice of the Separate Convertible Notes (if any) from the Custodial Agent as set forth in Section 5.02(b)(i) aboveCompany, the Remarketing Agents shallAgent and the Participating Holders may mutually agree (each such period, on a “Remarketing Period”)) selected by the Company, the Remarketing Date or Dates, use reasonable efforts to remarket, as provided in Agent and the Participating Holders that falls during the Remarketing Agreement (Window. Pursuant to, and subject to the execution of a terms of, the Remarketing Agreement and Agreement, the satisfaction of Company shall cause the conditions set forth therein), Remarketing Agent(s) to use its reasonable best efforts to remarket such Convertible Notes and such Separate Convertible Notes Series A Shares at or above the applicable Original Remarketing Price.
(iid) If the Remarketing Agents are Agent(s) determine, prior to the commencement of the Remarketing Period, that the Remarketing is unlikely to be successful at or above the Original Remarketing Price on the existing terms of the Series A Shares, then the Remarketing Agent(s) shall notify the Company and the Participating Holders thereof. In such event, the Participating Holders, in connection with the Remarketing, may either (i) terminate the Remarketing by delivery of written notice thereof to the Company (any such terminated Remarketing shall constitute an Unsuccessful Remarketing for purposes of this Certificate of Designations), or (ii) request, in writing, that the dividend rate on all Series A Shares (whether or not remarketed) be increased by the Company to a rate that would allow the Series A Shares to be remarketed at the Original Remarketing Price and, if the Board of Directors so approves, such dividends will be payable quarterly in arrears, commencing on the January 1, April 1, July 1 or October 1 immediately succeeding the Remarketing Settlement Date in accordance herewith, when, as and if declared by the Board of Directors. In addition, pursuant to the terms hereof, (A) the earliest redemption date for the Series A Shares may be changed to be a later date, and (B) such other changes to the terms of the Series A Shares as may be agreed between the Company and the Participating Holders may be made. These modifications shall become effective if the Remarketing is successful, without the consent of the Holders and notwithstanding anything to the contrary in this Certificate of Designations, on the Remarketing Settlement Date. If a Successful Remarketing occurs, the Company will request the Depositary to notify the Depositary Participants holding Series A Shares of any Modified Dividend Rate, Modified Redemption Date, dividend payment dates and other modified terms (any such terms, “Modified Terms”) for the Series A Shares on the Business Day following the date of the Successful Remarketing. Any Modified Terms shall be made with the intention of preserving any then-existing rating agency equity credit for the Series A Shares. In the event of any Remarketing on Modified Terms, the Company shall cause the Remarketing Agent(s) to use its reasonable best efforts to remarket such Series A Shares during the Remarketing Period on the Modified Terms at the highest price reasonably attainable by the Remarketing Agent(s), but, without the prior consent of the Participating Holders, no less than 90% of the Liquidation Preference for the Series A Shares to be remarketed (any such price, a “Modified Remarketing Price”).
(e) If the Remarketing Agent(s) is able to remarket such Convertible Notes and Separate Convertible Notes (if any) Series A Shares for at least a Remarketing Price permitted by this Section 11 in the Remarketing Price in any Remarketing (other than to the Company) in accordance with the Remarketing Agreement (a “Successful Remarketing”), the Collateral Agent Company and the Participating Holders shall cause the Securities Intermediary Transfer Agent to transfer the remarketed Series A Shares to the Remarketing Agents (or a designee appointed by them) the remarketed Pledged Convertible Notes upon confirmation of deposit to the Collateral Account of proceeds of such Successful Remarketing attributable to such Convertible Notes, and the Custodial Agent shall transfer the remarketed Separate Convertible Notes to the Remarketing Agents (or a designee appointed by themAgent(s) upon confirmation of the Company’s receipt of proceeds of such Successful Remarketing attributable to such Separate Convertible NotesRemarketing. Settlement shall occur on the Remarketing Settlement Date. Upon deposit in the Collateral Account of such proceeds, the Collateral Agent shall, on the Purchase Contract Settlement Date, upon written direction of the Purchase Contract Agent (which direction The Remarketing Agent(s) shall include the calculation set forth below of the amount to be remitted by the Securities Intermediary), instruct the Securities Intermediary to remit a portion of such proceeds equal to the aggregate principal amount of such Convertible Notes to satisfy in full the Obligations of Holders of Corporate Units to pay the Purchase Price for the shares of Common Stock under the related Purchase Contracts, less the amount of any accrued and unpaid Contract Adjustment Payments payable to such Holders, and promptly remit the balance of such proceeds to the Purchase Contract Agent for payment to the Holders of Corporate Units, whereupon the Purchase Contract Agent shall make such payment on the Purchase Contract Settlement Date Pro Rata in accordance with their respective interests. With respect to any Separate Convertible Notes remarketed, the Custodial Agent shall remit such proceeds of the Successful Remarketing received from to the Participating Holders on the Remarketing Agents pro rata to Holders of such Separate Convertible Notes. For the avoidance of doubt, Holders and holders of Separate Notes participating in a Successful Remarketing shall not be liable for payment of any remarketing feeSettlement Date.
(iiif) If, in spite of its reasonable best efforts, the Remarketing Agents Agent(s) cannot remarket the Convertible Notes on or prior to Series A Shares as set forth above during the second Remarketing Date Period at a price not less than the Remarketing Price (other than to or the Company) Modified Remarketing Price, as applicable, or a condition precedent set forth in the Remarketing Agreement is not fulfilled, the remarketing Remarketing will be deemed to have failed been unsuccessful (a an “Failed Unsuccessful Remarketing”). Following a Failed RemarketingThe Company shall notify, as in writing, the Participating Holders and the Transfer Agent of the Purchase Contract Settlement Date, each Holder of any Pledged Convertible Notes, unless such Holder has provided written notice to the Purchase Contract Agent in substantially the form of Exhibit M hereto of its intention to settle the related Purchase Contract with separate cash prior to 5:00 p.m. (New York City time) Unsuccessful Remarketing on the Business Day immediately preceding following the Purchase Contract Settlement Date and on or prior to 5:00 p.m. last date of the Remarketing Period. Promptly (New York City timebut in any event within five Business Days) on such Business Day delivered after receipt of written notice from the Purchase Price Company of an Unsuccessful Remarketing, the Transfer Agent will return Series A Shares to the Securities Intermediary appropriate Holders. The Remarketing to which such any Unsuccessful Remarketing relates shall terminate for deposit all purposes upon the delivery of the notification set forth in the Collateral Account in lawful money of immediately preceding sentence.
(g) If there is a Successful Remarketing at a Modified Remarketing Price, then the United States by certified or cashiers check or wire transfer in immediately available funds payable to or upon Company shall reimburse (the order of “Remarketing Reimbursement”) each Participating Holder (the Securities Intermediary, shall be deemed to have exercised such Holder’s Put Right with respect to the Pledged Convertible Notes and to have elected to apply the Proceeds of the Put Right “Reimbursed Holders”) for an amount equal to the aggregate Purchase Price against such Holder’s obligation to pay the aggregate Purchase Price for the shares of Common Stock to be issued under the related Purchase Contracts in full satisfaction of such Holders’ Obligations under such Purchase Contracts. Following such application, if practicable by way of set-off, each such Holder’s Obligations, including to pay the Purchase Price for the shares of Common Stock, will be deemed to be satisfied in full, and upon written instruction from the Purchase Contract Agent, the Collateral Agent shall cause the Securities Intermediary to release the Pledged Convertible Notes from the Collateral Account and shall promptly transfer such Convertible Notes to the Company. Upon (x) receipt by the Collateral Agent of a notice from the Purchase Contract Agent in substantially the form of Exhibit N hereto promptly after the receipt by the Purchase Contract Agent of a notice from a Holder of Corporate Units that such Holder has elected, in accordance with this Section 5.02(b)(iii), to settle the related Purchase Contract with separate cash and (y) payment by such Holder to the Securities Intermediary of the Purchase Price in accordance with the second sentence of this Section 5.02(b)(iii), in lieu of exercise of such Holder’s Put Right, the Securities Intermediary shall give the Purchase Contract Agent notice of the receipt of such payment in substantially the form of Exhibit O hereto and shall (A) invest the separate cash received in Permitted Investments consistent with the instructions of the Company as provided in Section 5.02(a)(v) with respect to Cash Settlement, (B) promptly release from the Pledge the Convertible Notes related to the Corporate Units as to which such Holder has paid such separate cash and (C) promptly Transfer all such Convertible Notes to the Purchase Contract Agent for distribution to such Holder, in each case free and clear of the Pledge created hereby, whereupon the Purchase Contract Agent shall Transfer such Convertible Notes in accordance with written instructions provided by the Holder thereof or, if no such instructions are given to the Purchase Contract Agent by the Holder, the Purchase Contract Agent shall hold such Convertible Notes, and any interest payment thereon, in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder until the expiration of the time period specified in the relevant abandoned property laws of the state where such Convertible Notes and interest payments thereonexcess, if any, are held. Upon maturity of the Permitted Investments Liquidation Preference for the Series A Shares that such Reimbursed Holder elected to include in the Remarketing over the aggregate Modified Remarketing Price of such Series A Shares (the “Remarketing Loss”); provided that the Remarketing Loss with respect to any Series A Share shall not exceed 10% of the Liquidation Preference for such Series A Share. The Remarketing Reimbursement may be paid by the Company in cash or by issuing duly authorized and fully paid and nonassessable Ordinary Shares or by a combination thereof, in the Company’s discretion. Any Remarketing Reimbursement to be paid in cash shall be paid to the Reimbursed Holders on the Purchase Contract Remarketing Settlement Date. If any portion of the Remarketing Reimbursement is paid by the delivery of Ordinary Shares (such dollar amount, the Collateral Agent “Remarketing Loss Share Amount”), then (x) the number of Ordinary Shares deliverable in respect of such portion shall upon written instruction from be equal to the Companyresult of (i) the portion of the Remarketing Loss being reimbursed in Ordinary Shares, and is hereby authorized to, divided by (ii) a dollar amount equal to the higher of (A) instruct the Securities Intermediary to remit an 8.0% discount to the Company average of the VWAP per Ordinary Share on each of the Purchase Contract 30 consecutive Trading Days from, but excluding the Remarketing Settlement Date such portion of (the proceeds of such Permitted Investments as is equal to the aggregate Purchase Price under all Purchase Contracts in respect of which separate cash has been paid as provided in this Section 5.02(b)(iii) (as set forth in the instruction from the Company) to the Company on the Purchase Contract Settlement Date“Remarketing Loss Share Pricing Period”), and (B) release $6.00, and (y) such Ordinary Shares shall be delivered to the Reimbursed Holders on the first Business Day following the end of the Remarketing Loss Share Pricing Period plus an amount in cash equal to the Remarketing Interest Amount. The Remarketing Reimbursement shall be treated by the Company and the Original Holders as proceeds from the sale or exchange of Series A Shares for United States federal (and other applicable) tax purposes.
(h) Within five Business Days after receipt of any amounts Remarketing Notice, the Company shall notify the Original Series B Holders (but only if they still hold Series B Shares) of the Remarketing (a “Series B Remarketing Notice”) and provide for a process by which such Original Series B Holders may elect to participate in excess the Remarketing, subject to the terms of this Section 11(h). The Remarketing Notice shall specify the anticipated timing for the Remarketing and the Engagement Deadline. The electing Original Series B Holders (the “Participating Series B Holders”) may have their Series B Shares remarketed in such Remarketing by delivering their Series B Shares, along with written notice of their election (a “Series B Participation Notice”), to the Company and the Transfer Agent (with a copy of such amount earned from such Permitted Investments notice to the Purchase Contract Agent for distribution Original Holders) by the Engagement Deadline. Any such election shall be irrevocable with respect to such Remarketing. With respect to the remarketing of any Series B Shares included in any Remarketing pursuant to this Section 11(h) (the “Included Series B Shares”): (i) the Included Series B Shares shall be treated equivalently to the Series A Shares; (ii) the Participating Holders who have paid shall be entitled to control the Remarketing and make all decisions in respect of the Remarketing pursuant to this Section 11 and the Remarketing Agreement, including the termination of any Remarketing; (iii) the Company shall cause any Modified Terms to be applied to the Series B Shares; and (iv) if the Remarketing Agent(s) advise the Company and the Participating Holders that in its opinion the number of Series A Shares and Included Series B Shares proposed to be included in such separate cash pro-rata Remarketing exceeds the number of Series A Shares and Included Series B Shares which can be sold in such Remarketing without materially delaying or jeopardizing the success of the Remarketing (including the amount of the Remarketing Price for the Series A Shares and Included Series B Shares proposed to be sold in such Remarketing), the Company shall cause the Remarketing Agent(s) to remarket only such number of Series A Shares and Included Series B Shares that in the opinion of such Remarketing Agent(s) can be sold in such Remarketing without materially delaying or jeopardizing the success of the Remarketing (including the amount of the Remarketing Price for the Series A Shares and Included Series B Shares proposed to be sold in such Remarketing), and (v) the Participating Series B Holders shall be liable for the underwriting discounts and commissions in accordance with Section 14(b). The reduced number of Series A Shares and Included Series B Shares to be included in any such Remarketing will be calculated in proportion to the aggregate amount paid of liquidation preference represented by Series A Shares and Included Series B Shares that were to be included in such Remarketing.
(i) The Company agrees to use its reasonable best efforts to ensure that, if required by applicable law, a registration statement, including a prospectus, under the Securities Act with regard to the full amount of the Series A Shares to be remarketed in the Remarketing in each case shall be effective with the United States Securities and Exchange Commission in a form that may be used by the Remarketing Agent(s) in connection with such Remarketing (unless such registration statement is not required under the applicable laws and regulations that are in effect at that time or unless the Company conducts the Remarketing in accordance with an exemption under the securities laws (including Rule 144A under the Exchange Act)).
(j) In connection with a Remarketing, the Board of Directors shall determine any Modified Terms pursuant to Section 11(d) after consultation with the Remarketing Agent; provided that any such changes are only those either requested by the Participating Holders under or to which the Participating Holders consent. In the event of a Successful Remarketing, the Dividend Rate may be increased, a Modified Redemption Date may be established, and/or other Modified Terms may be established, in each case, on the Remarketing Settlement Date, to the applicable Modified Dividend Rate and/or Modified Redemption Date as determined by the Board of Directors after consultation with the Remarketing Agent(s), and the Company shall (i) notify each of the Transfer Agent and the Conversion Agent by an Officer’s certificate delivered to the Transfer Agent and the Conversion Agent and (ii) request the Depositary to notify its Depositary Participants holding Series A Shares, in each case, of the Modified Terms established for the Series A Shares during the Remarketing on the Business Day following the date of the Successful Remarketing. The Dividend Rate cannot be decreased, and no modification that is detrimental to the Holders can be made, in connection with a Remarketing. Any modified terms of the Series A Shares in connection with a Remarketing shall apply to every Series A Share, whether or not remarketed, and to every Series B Share (without any further action by the holders of Series B Shares). In the event of an Unsuccessful Remarketing, the Dividend Rate and the other terms of the Series A Shares will not be modified.
(k) The Company shall provide the Original Holders (but only if they hold any Series A Shares) with written notice of the termination of any remarketing pursuant to Section 11 of the Series B Certificate of Designations. Any change or modification to the terms of the Series B Shares as a result of any Series B Remarketing shall also be applied to the terms of the Series A Shares (without any further action by the Holders). The Modified Dividend Rate cannot result in an overall rate that is less than the then-applicable Dividend Rate, and no modification that is detrimental to the Holders can be made, in connection with modifications to the Series A Shares resulting from a Series B Remarketing. Any participation by an Original Holder in a Remarketing pursuant to Section 11(h) of the Series B Certificate of Designation shall not constitute a Remarketing pursuant to this Section 5.02(b)(iii11.
(l) The Company shall, within 10 days of the receipt of a Remarketing Notice, select, in consultation with, and subject to the approval of, the Original Holders, the Remarketing Agent(s) for any Remarketing; provided that (A) the Original Holders may not unreasonably withhold, delay or condition their approval and (B) that any Remarketing Agent(s) so selected shall be a financial institution of nationally recognized standing in the United States. The Company shall cause any Remarketing Agreement to contain terms that reflect, and are consistent with, the terms of this Section 11. If the Company fails to select a Remarketing Agent within 10 days of the receipt of a Remarketing Notice, the Original Holders shall select the Remarketing Agent subject to the proviso provided under clause (B) in this Section 11(l).
(m) The Company shall provide written notice of any modifications to the terms of the Series A Shares as a result of a Remarketing or a Series B Remarketing to all Holders within five Business Days after the time any such modifications become effective.
Appears in 1 contract
Sources: Investment Agreement (FGL Holdings)
Remarketing. (ia) Unless At any time following November 30, 2022, unless a Termination Event Competing Remarketing is occurring and has occurred prior to the first Remarketing Date, in order to dispose of the Pledged Convertible Notes of any Holders of Corporate Units, who have not notified the Purchase Contract Agent of their intention to effect a Cash Settlement as provided in Section 5.02(a)(i) above, or who have so notified the Purchase Contract Agent but failed to make such payment as required by Section 5.02(a)(ii) above, in each case along with any Separate Convertible Notesterminated, the holders of which have elected Original Holders may elect, at their option, to participate in a Remarketing pursuant to clause (c)(ii) below, cause the Company shall to engage the Remarketing Agents pursuant to Agent(s) on either a “best efforts” or firm commitment basis at the option of the Company and enter into the Remarketing Agreement to remarket the Series B Shares in accordance with this Section 11 (a “Remarketing”). Each electing Original Holder (collectively, the “Participating Holders”) may have all, but not less than all, of their Series B Shares remarketed in such Convertible Notes on Remarketing by delivering such Series B Shares, along with written notice of their election (a “Remarketing Notice”), to the first Company and the Transfer Agent. The Remarketing Date andAgent(s) shall be selected by the Company, unless in consultation with the Original Holders, pursuant to Section 11(l). The Original Holders may, as a Successful group, only cause one Remarketing occurs on such first pursuant to this Section 11; provided, that following each Unsuccessful Remarketing Datehereunder, the Original Holders, as a group, shall be permitted to cause another Remarketing; provided, further, that any remarketing pursuant to Section 11(h) of the Series A Certificate of Designations in which the Original Holders elect to participate shall not be deemed a Remarketing for the purposes of this Certificate of Designations. Nothing in this Section 11 shall preclude the Company from exercising its redemption rights under Section 6(a) at any time permitted thereunder.
(b) Upon receipt of any Remarketing Notice, the Company shall use its reasonable best efforts to engage the Remarketing Agents pursuant to Agent(s) and enter into the Remarketing Agreement to remarket as promptly as practicable, but in any event within 30 days after receipt of such Convertible Notes on Remarketing Notice (the second Remarketing Date“Engagement Deadline”). The Purchase Contract Agent, based on the notices specified pursuant to Section 5.02(a)(iv), Company shall notify the Remarketing Agents in writing, promptly after 5:00 p.m. (New York City timeAgent(s) on the Business Day immediately preceding the Remarketing Date, of the aggregate principal amount of Pledged Convertible Notes that are to be remarketed. Concurrently, the Custodial Agent, based on the notices specified in clause (c)(ii) below, will notify the Remarketing Agents in writing of the aggregate principal amount number of Separate Convertible Notes Series B Shares to be remarketed in any and shall provide such other information and cooperation to the Remarketing Agent(s) as is reasonably necessary or desirable to conduct the Remarketing. Upon receipt .
(c) The Company shall cause the Remarketing to be conducted over a period of notice from up to 10 consecutive Business Days (or such longer period as the Purchase Contract Agent as set forth in Section 5.02(b)(i) above and notice of the Separate Convertible Notes (if any) from the Custodial Agent as set forth in Section 5.02(b)(i) aboveCompany, the Remarketing Agents shallAgent and the Participating Holders may mutually agree (each such period, on a “Remarketing Period”)) selected by the Company, the Remarketing Date or Dates, use reasonable efforts to remarket, as provided in Agent and the Participating Holders that falls during the Remarketing Agreement (Window. Pursuant to, and subject to the execution of a terms of, the Remarketing Agreement and Agreement, the satisfaction of Company shall cause the conditions set forth therein), Remarketing Agent(s) to use its reasonable best efforts to remarket such Convertible Notes and such Separate Convertible Notes Series B Shares at or above the applicable Original Remarketing Price.
(iid) If the Remarketing Agents are Agent(s) determine, prior to the commencement of the Remarketing Period, that the Remarketing is unlikely to be successful at or above the Original Remarketing Price on the existing terms of the Series B Shares, then the Remarketing Agent(s) shall notify the Company and the Participating Holders thereof. In such event, the Participating Holders, in connection with the Remarketing, may either (i) terminate the Remarketing by delivery of written notice thereof to the Company (any such terminated Remarketing shall constitute an Unsuccessful Remarketing for purposes of this Certificate of Designations), or (ii) request, in writing, that the dividend rate on all Series B Shares (whether or not remarketed) be increased by the Company to a rate that would allow the Series B Shares to be remarketed at the Original Remarketing Price and, if the Board of Directors so approves, such dividends will be payable quarterly in arrears, commencing on the January 1, April 1, July 1 or October 1 immediately succeeding the Remarketing Settlement Date in accordance herewith, when, as and if declared by the Board of Directors. In addition, pursuant to the terms hereof, (A) the earliest redemption date for the Series B Shares may be changed to be a later date, and (B) such other changes to the terms of the Series B Shares as may be agreed between the Company and the Participating Holders may be made. These modifications shall become effective if the Remarketing is successful, without the consent of the Holders and notwithstanding anything to the contrary in this Certificate of Designations, on the Remarketing Settlement Date. If a Successful Remarketing occurs, the Company will request the Depositary to notify the Depositary Participants holding Series B Shares of any Modified Dividend Rate, Modified Redemption Date, dividend payment dates and other modified terms (any such terms, “Modified Terms”) for the Series B Shares on the Business Day following the date of the Successful Remarketing. Any Modified Terms shall be made with the intention of preserving any then-existing rating agency equity credit for the Series B Shares. In the event of any Remarketing on Modified Terms, the Company shall cause the Remarketing Agent(s) to use its reasonable best efforts to remarket such Series B Shares during the Remarketing Period on the Modified Terms at the highest price reasonably attainable by the Remarketing Agent(s), but, without the prior consent of the Participating Holders, no less than 90% of the Liquidation Preference for the Series B Shares to be remarketed (any such price, a “Modified Remarketing Price”).
(e) If the Remarketing Agent(s) is able to remarket such Convertible Notes and Separate Convertible Notes (if any) Series B Shares for at least a Remarketing Price permitted by this Section 11 in the Remarketing Price in any Remarketing (other than to the Company) in accordance with the Remarketing Agreement (a “Successful Remarketing”), the Collateral Agent Company and the Participating Holders shall cause the Securities Intermediary Transfer Agent to transfer the remarketed Series B Shares to the Remarketing Agents (or a designee appointed by them) the remarketed Pledged Convertible Notes upon confirmation of deposit to the Collateral Account of proceeds of such Successful Remarketing attributable to such Convertible Notes, and the Custodial Agent shall transfer the remarketed Separate Convertible Notes to the Remarketing Agents (or a designee appointed by themAgent(s) upon confirmation of the Company’s receipt of proceeds of such Successful Remarketing attributable to such Separate Convertible NotesRemarketing. Settlement shall occur on the Remarketing Settlement Date. Upon deposit in the Collateral Account of such proceeds, the Collateral Agent shall, on the Purchase Contract Settlement Date, upon written direction of the Purchase Contract Agent (which direction The Remarketing Agent(s) shall include the calculation set forth below of the amount to be remitted by the Securities Intermediary), instruct the Securities Intermediary to remit a portion of such proceeds equal to the aggregate principal amount of such Convertible Notes to satisfy in full the Obligations of Holders of Corporate Units to pay the Purchase Price for the shares of Common Stock under the related Purchase Contracts, less the amount of any accrued and unpaid Contract Adjustment Payments payable to such Holders, and promptly remit the balance of such proceeds to the Purchase Contract Agent for payment to the Holders of Corporate Units, whereupon the Purchase Contract Agent shall make such payment on the Purchase Contract Settlement Date Pro Rata in accordance with their respective interests. With respect to any Separate Convertible Notes remarketed, the Custodial Agent shall remit such proceeds of the Successful Remarketing received from to the Participating Holders on the Remarketing Agents pro rata to Holders of such Separate Convertible Notes. For the avoidance of doubt, Holders and holders of Separate Notes participating in a Successful Remarketing shall not be liable for payment of any remarketing feeSettlement Date.
(iiif) If, in spite of its reasonable best efforts, the Remarketing Agents Agent(s) cannot remarket the Convertible Notes on or prior to Series B Shares as set forth above during the second Remarketing Date Period at a price not less than the Remarketing Price (other than to or the Company) Modified Remarketing Price, as applicable, or a condition precedent set forth in the Remarketing Agreement is not fulfilled, the remarketing Remarketing will be deemed to have failed been unsuccessful (a an “Failed Unsuccessful Remarketing”). Following a Failed RemarketingThe Company shall notify, as in writing, the Participating Holders and the Transfer Agent of the Purchase Contract Settlement Date, each Holder of any Pledged Convertible Notes, unless such Holder has provided written notice to the Purchase Contract Agent in substantially the form of Exhibit M hereto of its intention to settle the related Purchase Contract with separate cash prior to 5:00 p.m. (New York City time) Unsuccessful Remarketing on the Business Day immediately preceding following the Purchase Contract Settlement Date and on or prior to 5:00 p.m. last date of the Remarketing Period. Promptly (New York City timebut in any event within five Business Days) on such Business Day delivered after receipt of written notice from the Purchase Price Company of an Unsuccessful Remarketing, the Transfer Agent will return Series B Shares to the Securities Intermediary appropriate Holders. The Remarketing to which such any Unsuccessful Remarketing relates shall terminate for deposit all purposes upon the delivery of the notification set forth in the Collateral Account in lawful money of immediately preceding sentence.
(g) If there is a Successful Remarketing at a Modified Remarketing Price, then the United States by certified or cashiers check or wire transfer in immediately available funds payable to or upon Company shall reimburse (the order of “Remarketing Reimbursement”) each Participating Holder (the Securities Intermediary, shall be deemed to have exercised such Holder’s Put Right with respect to the Pledged Convertible Notes and to have elected to apply the Proceeds of the Put Right “Reimbursed Holders”) for an amount equal to the aggregate Purchase Price against such Holder’s obligation to pay the aggregate Purchase Price for the shares of Common Stock to be issued under the related Purchase Contracts in full satisfaction of such Holders’ Obligations under such Purchase Contracts. Following such application, if practicable by way of set-off, each such Holder’s Obligations, including to pay the Purchase Price for the shares of Common Stock, will be deemed to be satisfied in full, and upon written instruction from the Purchase Contract Agent, the Collateral Agent shall cause the Securities Intermediary to release the Pledged Convertible Notes from the Collateral Account and shall promptly transfer such Convertible Notes to the Company. Upon (x) receipt by the Collateral Agent of a notice from the Purchase Contract Agent in substantially the form of Exhibit N hereto promptly after the receipt by the Purchase Contract Agent of a notice from a Holder of Corporate Units that such Holder has elected, in accordance with this Section 5.02(b)(iii), to settle the related Purchase Contract with separate cash and (y) payment by such Holder to the Securities Intermediary of the Purchase Price in accordance with the second sentence of this Section 5.02(b)(iii), in lieu of exercise of such Holder’s Put Right, the Securities Intermediary shall give the Purchase Contract Agent notice of the receipt of such payment in substantially the form of Exhibit O hereto and shall (A) invest the separate cash received in Permitted Investments consistent with the instructions of the Company as provided in Section 5.02(a)(v) with respect to Cash Settlement, (B) promptly release from the Pledge the Convertible Notes related to the Corporate Units as to which such Holder has paid such separate cash and (C) promptly Transfer all such Convertible Notes to the Purchase Contract Agent for distribution to such Holder, in each case free and clear of the Pledge created hereby, whereupon the Purchase Contract Agent shall Transfer such Convertible Notes in accordance with written instructions provided by the Holder thereof or, if no such instructions are given to the Purchase Contract Agent by the Holder, the Purchase Contract Agent shall hold such Convertible Notes, and any interest payment thereon, in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder until the expiration of the time period specified in the relevant abandoned property laws of the state where such Convertible Notes and interest payments thereonexcess, if any, are held. Upon maturity of the Permitted Investments Liquidation Preference for the Series B Shares that such Reimbursed Holder elected to include in the Remarketing over the aggregate Modified Remarketing Price of such Series B Shares (the “Remarketing Loss”); provided that the Remarketing Loss with respect to any Series B Share shall not exceed 10% of the Liquidation Preference for such Series B Share. The Remarketing Reimbursement may be paid by the Company in cash or by issuing duly authorized and fully paid and nonassessable Ordinary Shares or by a combination thereof, in the Company’s discretion. Any Remarketing Reimbursement to be paid in cash shall be paid to the Reimbursed Holders on the Purchase Contract Remarketing Settlement Date. If any portion of the Remarketing Reimbursement is paid by the delivery of Ordinary Shares (such dollar amount, the Collateral Agent “Remarketing Loss Share Amount”), then (x) the number of Ordinary Shares deliverable in respect of such portion shall upon written instruction from be equal to the Companyresult of (i) the portion of the Remarketing Loss being reimbursed in Ordinary Shares, and is hereby authorized to, divided by (ii) a dollar amount equal to the higher of (A) instruct the Securities Intermediary to remit an 8.0% discount to the Company average of the VWAP per Ordinary Share on each of the Purchase Contract 30 consecutive Trading Days from, but excluding the Remarketing Settlement Date such portion of (the proceeds of such Permitted Investments as is equal to the aggregate Purchase Price under all Purchase Contracts in respect of which separate cash has been paid as provided in this Section 5.02(b)(iii) (as set forth in the instruction from the Company) to the Company on the Purchase Contract Settlement Date“Remarketing Loss Share Pricing Period”), and (B) release $6.00, and (y) such Ordinary Shares shall be delivered to the Reimbursed Holders on the first Business Day following the end of the Remarketing Loss Share Pricing Period plus an amount in cash equal to the Remarketing Interest Amount. The Remarketing Reimbursement shall be treated by the Company and the Original Holders as proceeds from the sale or exchange of Series B Shares for United States federal (and other applicable) tax purposes.
(h) Within five Business Days after receipt of any amounts Remarketing Notice, the Company shall notify the Original Series A Holders (but only if they still hold Series A Shares) of the Remarketing (a “Series A Remarketing Notice”) and provide for a process by which such Original Series A Holders may elect to participate in excess the Remarketing, subject to the terms of this Section 11(h). The Remarketing Notice shall specify the anticipated timing for the Remarketing and the Engagement Deadline. The electing Original Series A Holders (the “Participating Series A Holders”) may have their Series A Shares remarketed in such Remarketing by delivering their Series A Shares, along with written notice of their election (a “Series A Participation Notice”), to the Company and the Transfer Agent (with a copy of such amount earned from such Permitted Investments notice to the Purchase Contract Agent for distribution Original Holders) by the Engagement Deadline. Any such election shall be irrevocable with respect to such Remarketing. With respect to the remarketing of any Series A Shares included in any Remarketing pursuant to this Section 11(h) (the “Included Series A Shares”): (i) the Included Series A Shares shall be treated equivalently to the Series B Shares; (ii) the Participating Holders who have paid shall be entitled to control the Remarketing and make all decisions in respect of the Remarketing pursuant to this Section 11 and the Remarketing Agreement, including the termination of any Remarketing; (iii) the Company shall cause any Modified Terms to be applied to the Series A Shares; and (iv) if the Remarketing Agent(s) advise the Company and the Participating Holders that in its opinion the number of Series B Shares and Included Series A Shares proposed to be included in such separate cash pro-rata Remarketing exceeds the number of Series B Shares and Included Series A Shares which can be sold in such Remarketing without materially delaying or jeopardizing the success of the Remarketing (including the amount of the Remarketing Price for the Series B Shares and Included Series A Shares proposed to be sold in such Remarketing), the Company shall cause the Remarketing Agent(s) to remarket only such number of Series B Shares and Included Series A Shares that in the opinion of such Remarketing Agent(s) can be sold in such Remarketing without materially delaying or jeopardizing the success of the Remarketing (including the amount of the Remarketing Price for the Series B Shares and Included Series A Shares proposed to be sold in such Remarketing), and (v) the Participating Series A Holders shall be liable for the underwriting discounts and commissions in accordance with Section 14(b). The reduced number of Series B Shares and Included Series A Shares to be included in any such Remarketing will be calculated in proportion to the aggregate amount paid of liquidation preference represented by Series B Shares and Included Series A Shares that were to be included in such Remarketing.
(i) The Company agrees to use its reasonable best efforts to ensure that, if required by applicable law, a registration statement, including a prospectus, under the Securities Act with regard to the full amount of the Series B Shares to be remarketed in the Remarketing in each case shall be effective with the United States Securities and Exchange Commission in a form that may be used by the Remarketing Agent(s) in connection with such Remarketing (unless such registration statement is not required under the applicable laws and regulations that are in effect at that time or unless the Company conducts the Remarketing in accordance with an exemption under the securities laws (including Rule 144A under the Exchange Act)).
(j) In connection with a Remarketing, the Board of Directors shall determine any Modified Terms pursuant to Section 11(d) after consultation with the Remarketing Agent; provided that any such changes are only those either requested by the Participating Holders under or to which the Participating Holders consent. In the event of a Successful Remarketing, the Dividend Rate may be increased, a Modified Redemption Date may be established, and/or other Modified Terms may be established, in each case, on the Remarketing Settlement Date, to the applicable Modified Dividend Rate and/or Modified Redemption Date as determined by the Board of Directors after consultation with the Remarketing Agent(s), and the Company shall (i) notify each of the Transfer Agent and the Conversion Agent by an Officer’s certificate delivered to the Transfer Agent and the Conversion Agent and (ii) request the Depositary to notify its Depositary Participants holding Series B Shares, in each case, of the Modified Terms established for the Series B Shares during the Remarketing on the Business Day following the date of the Successful Remarketing. The Dividend Rate cannot be decreased, and no modification that is detrimental to the Holders can be made, in connection with a Remarketing. Any modified terms of the Series B Shares in connection with a Remarketing shall apply to every Series B Share, whether or not remarketed, and to every Series A Share (without any further action by the holders of Series A Shares). In the event of an Unsuccessful Remarketing, the Dividend Rate and the other terms of the Series B Shares will not be modified.
(k) The Company shall provide the Original Holders (but only if they hold any Series B Shares) with written notice of the termination of any remarketing pursuant to Section 11 of the Series A Certificate of Designations. Any change or modification to the terms of the Series A Shares as a result of any Series A Remarketing shall also be applied to the terms of the Series B Shares (without any further action by the Holders). The Modified Dividend Rate cannot result in an overall rate that is less than the then-applicable Dividend Rate, and no modification that is detrimental to the Holders can be made, in connection with modifications to the Series B Shares resulting from a Series A Remarketing. Any participation by an Original Holder in a Remarketing pursuant to Section 11(h) of the Series A Certificate of Designation shall not constitute a Remarketing pursuant to this Section 5.02(b)(iii11.
(l) The Company shall, within 10 days of the receipt of a Remarketing Notice, select, in consultation with, and subject to the approval of, the Original Holders, the Remarketing Agent(s) for any Remarketing; provided that (A) the Original Holders may not unreasonably withhold, delay or condition their approval and (B) that any Remarketing Agent(s) so selected shall be a financial institution of nationally recognized standing in the United States. The Company shall cause any Remarketing Agreement to contain terms that reflect, and are consistent with, the terms of this Section 11. If the Company fails to select a Remarketing Agent within 10 days of the receipt of a Remarketing Notice, the Original Holders shall select the Remarketing Agent subject to the proviso provided under clause (B) in this Section 11(l).
(m) The Company shall provide written notice of any modifications to the terms of the Series B Shares as a result of a Remarketing or a Series A Remarketing to all Holders within five Business Days after the time any such modifications become effective.
Appears in 1 contract
Sources: Investment Agreement (FGL Holdings)
Remarketing. (i) Unless a Termination Event has occurred prior to If Lessee does not elect the first Remarketing DateRenewal Option or Purchase Option for this Lease, in order to dispose of the Pledged Convertible Notes of any Holders of Corporate Units, who have not notified the Purchase Contract Agent of their intention to effect a Cash Settlement as provided in Section 5.02(a)(i) above, or who have so notified the Purchase Contract Agent but failed to make such payment as required by Section 5.02(a)(ii) above, in each case along with any Separate Convertible Notes, the holders of which have elected to participate in a Remarketing pursuant to clause (c)(ii) below, the Company then Lessee shall engage the Remarketing Agents pursuant to the Remarketing Agreement to remarket such Convertible Notes on the first Remarketing Date and, unless a Successful Remarketing occurs on such first Remarketing Date, the Company shall engage the Remarketing Agents pursuant to the Remarketing Agreement to remarket such Convertible Notes on the second Remarketing Date. The Purchase Contract Agent, based on the notices specified pursuant to Section 5.02(a)(iv), shall notify the Remarketing Agents in writing, promptly after 5:00 p.m. (New York City time) on the Business Day immediately preceding the Remarketing Date, of the aggregate principal amount of Pledged Convertible Notes that are to be remarketed. Concurrently, the Custodial Agent, based on the notices specified in clause (c)(ii) below, will notify the Remarketing Agents in writing of the aggregate principal amount of Separate Convertible Notes to be remarketed in any Remarketing. Upon receipt of notice from the Purchase Contract Agent as set forth in Section 5.02(b)(i) above and notice of the Separate Convertible Notes (if any) from the Custodial Agent as set forth in Section 5.02(b)(i) above, the Remarketing Agents shall, on the Remarketing Date or Dates, use commercially reasonable efforts to remarketon a non-discriminatory, non-priority “as provided in the Remarketing Agreement (subject to the execution of a Remarketing Agreement and the satisfaction of the conditions set forth therein), such Convertible Notes and such Separate Convertible Notes at or above the applicable Remarketing Price.
(ii) If the Remarketing Agents are able to remarket such Convertible Notes and Separate Convertible Notes (if any) for at least the Remarketing Price in any Remarketing (other than to the Company) in accordance with the Remarketing Agreement (a “Successful Remarketing”), the Collateral Agent shall cause the Securities Intermediary to transfer to the Remarketing Agents (or a designee appointed by them) the remarketed Pledged Convertible Notes upon confirmation of deposit to the Collateral Account of proceeds of such Successful Remarketing attributable to such Convertible Notes, and the Custodial Agent shall transfer the remarketed Separate Convertible Notes to the Remarketing Agents (or a designee appointed by them) upon confirmation of receipt of proceeds of such Successful Remarketing attributable to such Separate Convertible Notes. Settlement shall occur on the Remarketing Settlement Date. Upon deposit in the Collateral Account of such proceeds, the Collateral Agent shall, on the Purchase Contract Settlement Date, upon written direction of the Purchase Contract Agent (which direction shall include the calculation set forth below of the amount to be remitted by the Securities Intermediary), instruct the Securities Intermediary to remit a portion of such proceeds equal to the aggregate principal amount of such Convertible Notes to satisfy in full the Obligations of Holders of Corporate Units to pay the Purchase Price for the shares of Common Stock under the related Purchase Contracts, less the amount of any accrued and unpaid Contract Adjustment Payments payable to such Holders, and promptly remit the balance of such proceeds to the Purchase Contract Agent for payment to the Holders of Corporate Units, whereupon the Purchase Contract Agent shall make such payment on the Purchase Contract Settlement Date Pro Rata in accordance with their respective interests. With respect to any Separate Convertible Notes remarketed, the Custodial Agent shall remit such proceeds of the Successful Remarketing received from the Remarketing Agents pro rata to Holders of such Separate Convertible Notes. For the avoidance of doubt, Holders and holders of Separate Notes participating in a Successful Remarketing shall not be liable for payment of any remarketing fee.
(iii) If, in spite of its reasonable efforts, the Remarketing Agents cannot remarket the Convertible Notes on or prior to the second Remarketing Date at a price not less than the Remarketing Price (other than to the Company) or a condition precedent set forth in the Remarketing Agreement is not fulfilled, the remarketing will be deemed to have failed (a “Failed Remarketing”). Following a Failed Remarketing, as of the Purchase Contract Settlement Date, each Holder of any Pledged Convertible Notes, unless such Holder has provided written notice to the Purchase Contract Agent in substantially the form of Exhibit M hereto of its intention to settle the related Purchase Contract with separate cash prior to 5:00 p.m. (New York City time) on the Business Day immediately preceding the Purchase Contract Settlement Date and on or prior to 5:00 p.m. (New York City time) on such Business Day delivered the Purchase Price to the Securities Intermediary for deposit in the Collateral Account in lawful money of the United States by certified or cashiers check or wire transfer in immediately available funds payable to or upon the order of the Securities Intermediary, shall be deemed to have exercised such Holder’s Put Right with respect to the Pledged Convertible Notes and to have elected to apply the Proceeds of the Put Right equal to the aggregate Purchase Price against such Holder’s obligation to pay the aggregate Purchase Price for the shares of Common Stock to be issued under the related Purchase Contracts in full satisfaction of such Holders’ Obligations under such Purchase Contracts. Following such application, if practicable by way of set-off, each such Holder’s Obligations, including to pay the Purchase Price for the shares of Common Stock, will be deemed to be satisfied in full, and upon written instruction from the Purchase Contract Agent, the Collateral Agent shall cause the Securities Intermediary to release the Pledged Convertible Notes from the Collateral Account and shall promptly transfer such Convertible Notes to the Company. Upon (x) receipt by the Collateral Agent of a notice from the Purchase Contract Agent in substantially the form of Exhibit N hereto promptly after the receipt by the Purchase Contract Agent of a notice from a Holder of Corporate Units that such Holder has elected, in accordance with this Section 5.02(b)(iii)is” basis, to settle assist Lessor in remarketing the related Purchase Contract with separate cash and Equipment for one-hundred eighty (y180) payment by such Holder to the Securities Intermediary of the Purchase Price in accordance with the second sentence of this Section 5.02(b)(iii), in lieu of exercise of such Holder’s Put Right, the Securities Intermediary shall give the Purchase Contract Agent notice of the receipt of such payment in substantially the form of Exhibit O hereto and shall (A) invest the separate cash received in Permitted Investments consistent with the instructions of the Company as provided in Section 5.02(a)(v) with respect to Cash Settlement, (B) promptly release from the Pledge the Convertible Notes related to the Corporate Units as to which such Holder has paid such separate cash and (C) promptly Transfer all such Convertible Notes to the Purchase Contract Agent for distribution to such Holder, in each case free and clear of the Pledge created hereby, whereupon the Purchase Contract Agent shall Transfer such Convertible Notes in accordance with written instructions provided by the Holder thereof or, if no such instructions are given to the Purchase Contract Agent by the Holder, the Purchase Contract Agent shall hold such Convertible Notes, and any interest payment thereon, in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder until days following the expiration of the Initial Term or any Renewal Term of this Lease (the “Remarketing Period”). In connection with the foregoing remarketing obligations, Lessor may elect, by written notice to Lessee (“Service Notice”), that Lessee arrange one or more remarketing services specified by Lessor from time period specified to time in the relevant abandoned property laws writing, such remarketing services, if obtained, to be at Lessor’s sole cost as a remarketing expense (including both third party costs incurred by Lessee and a reasonable estimate of in house expenses incurred by Lessee; provided, however, that items with a cost over $5,000 shall require Lessor’s consent), which may include (i) arranging for removal of the state where such Convertible Notes Equipment; (ii) Equipment inspections and interest payments thereoninventory; (iii) Equipment de-installation and installation, if any, are held. Upon maturity as necessary; (iv) refurbishment of the Permitted Investments on Equipment; (v) appraisal of the Purchase Contract Settlement DateEquipment; (vi) Equipment maintenance services; (vii) arranging for Equipment maintenance certification; and/or (viii) providing and/or securing necessary Equipment license(s) and maintenance for a new purchaser or lessee. If, following the Collateral Agent receipt of the Service Notice, Lessee shall upon written instruction from in good faith determine that it is not feasible to perform any or all of the Companyforegoing services or that such performance could expose Lessee to unreasonable liability, then Lessee shall promptly notify Lessor in writing, whereupon Lessee shall have no further obligation to arrange for the performance of such services. In connection with any services performed by Lessee pursuant to this Section 15, Lessee shall (i) hold any Equipment that Lessee takes possession of, or control over, as bailee, and is hereby authorized to, (A) instruct the Securities Intermediary to remit to the Company on the Purchase Contract Settlement Date such portion of the proceeds of such Permitted Investments not as is equal to the aggregate Purchase Price under all Purchase Contracts in respect of which separate cash has been paid as provided in this Section 5.02(b)(iii) (as set forth in the instruction from the Company) to the Company on the Purchase Contract Settlement Dateconsignee, and (Bii) release be responsible for, and hereby indemnifies and holds Lessor harmless from and against, any amounts in excess and all damage to or loss of such amount earned from such Permitted Investments the Equipment to the Purchase Contract Agent for distribution extent such damage or loss is related to the Holders who gross negligence or willful misconduct of Lessee. Lessee shall be, and shall at all times remain, an independent contractor with regard to its obligations hereunder. In performing its remarketing obligations, Lessee may not pledge the credit of, or to enter into any contract or financing arrangement for, Lessor; it being agreed that Lessee has not been granted any property interest in any intellectual property (including, without limitation, the corporate name, trademarks or trade names) of Lessor. In this regard, Lessee has no power or authority, express or implied, to bind or otherwise obligate Lessor in any manner with respect to a sale, lease or other disposition of the Equipment. Any proposal or offer submitted by Lessee with respect thereto to any third-party shall state that it is conditioned upon the written approval of Lessor. In this regard, Lessor expressly reserves the right to approve or reject any offer or proposal, or portion thereof, made by Lessee or any third party, which approval or rejection shall not be unreasonably withheld or delayed. If any offer is approved by Lessor, in its sole and absolute discretion, the transaction(s) contemplated in such offer or proposal shall be consummated solely and directly between Lessor, in Lessor’s (or its nominee’s or designee’s) name, and the applicable purchaser or lessee. Any offer or proposal rejection shall not relieve Lessee of its obligations to continue to remarket the Equipment. In the event that Lessee is unable to sell or otherwise dispose of the Equipment during the Remarketing Period under terms and conditions reasonably acceptable to Lessor, then Lessor may remarket the Equipment within its sole and absolute discretion. In this event, Lessee shall deliver and/or make storage arrangements, as a remarketing expense, for any applicable Equipment as directed by Lessor in writing but shall otherwise have paid such separate cash pro-rata in proportion to the amount paid by such Holders under this Section 5.02(b)(iii)no further obligation hereunder.
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Remarketing. (a) The District appoints the Remarketing Agent as its exclusive agent to perform the duties under the Indenture for the remarketing of Bonds tendered or deemed tendered for purchase and, in reliance on the representations contained herein and subject to the terms hereof, the Remarketing Agent agrees to use its best efforts to solicit offers to purchase, at the best available price at a rate of interest up to the Maximum Rate without regarding to the Bank Bond Rate, the Bonds which have been: (i) Unless a Termination Event has occurred prior required to be tendered by the holders thereof pursuant to the first Remarketing Date, in order to dispose Indenture; or (ii) tendered at the option of the Pledged Convertible Notes holders thereof pursuant to the Indenture. It is understood that in undertaking to perform its duties under this Remarketing Agreement, it is the intention of any Holders of Corporate Units, who have the parties that the Remarketing Agent will act solely as an agent and not notified the Purchase Contract Agent of their intention to effect as a Cash Settlement principal except as expressly provided in Section 5.02(a)(i5(b) above, of this Remarketing Agreement.
(b) The Remarketing Agent shall not be required to solicit any purchase of Bonds or who have so notified perform any other action required to be performed under this Remarketing Agreement if: (i) it reasonably believes it has not received information from the Purchase Contract Agent but failed District necessary to make such payment as required by Section 5.02(a)(ii) above, in each case along with any Separate Convertible Notes, the holders of which have elected to participate in a Remarketing pursuant to clause (c)(ii) below, the Company shall engage allow the Remarketing Agents pursuant Agent to comply with the rules of the Municipal Securities Rulemaking Board or the Securities and Exchange Commission promulgated under the Securities Exchange Act of 1934 relating to disclosure or other similar requirements; (ii) there occurs any material noncompliance by the District of any obligation on its part to be performed under the Indenture or this Remarketing Agreement to remarket such Convertible Notes on the first Remarketing Date and, unless Agreement; or (iii) (A) a Successful Remarketing occurs on such first Remarketing Date, the Company shall engage the Remarketing Agents pursuant to the Remarketing Agreement to remarket such Convertible Notes on the second Remarketing Date. The Purchase Contract Agent, based on the notices specified Liquidity Facility is required pursuant to Section 5.02(a)(iv), 2.17 of the Indenture and there is no Liquidity Facility in effect; and (B) there shall notify have occurred and been continuing an Event of Default of which an authorized officer in the principal office of the Remarketing Agents Agent or an authorized officer in writing, promptly after 5:00 p.m. (New York City time) on the Business Day immediately preceding the Remarketing Date, principal corporate trust office of the aggregate principal amount Trustee has actual knowledge, unless remarketing of Pledged Convertible Notes that are the Bonds is consented to be remarketed. Concurrentlyin writing by the District, the Custodial Agent, based on the notices specified in clause (c)(ii) below, will notify the Remarketing Agents in writing of the aggregate principal amount of Separate Convertible Notes to be remarketed in any Remarketing. Upon receipt of notice from the Purchase Contract Agent as set forth in Section 5.02(b)(i) above and notice of the Separate Convertible Notes (if any) from the Custodial Agent as set forth in Section 5.02(b)(i) aboveTrustee, the Remarketing Agents shall, on the Remarketing Date or Dates, use reasonable efforts to remarket, as provided in the Remarketing Agreement (subject to the execution of a Remarketing Agreement Agent and the satisfaction of the conditions set forth therein), such Convertible Notes and such Separate Convertible Notes at or above the applicable Remarketing Price.
(ii) If the Remarketing Agents are able to remarket such Convertible Notes and Separate Convertible Notes (if any) for at least the Remarketing Price in any Remarketing (other than to the Company) in accordance with the Remarketing Agreement (a “Successful Remarketing”), the Collateral Agent shall cause the Securities Intermediary to transfer to the Remarketing Agents (or a designee appointed by them) the remarketed Pledged Convertible Notes upon confirmation of deposit to the Collateral Account of proceeds of such Successful Remarketing attributable to such Convertible Notes, and the Custodial Agent shall transfer the remarketed Separate Convertible Notes to the Remarketing Agents (or a designee appointed by them) upon confirmation of receipt of proceeds of such Successful Remarketing attributable to such Separate Convertible NotesLiquidity Provider. Settlement shall occur on the Remarketing Settlement Date. Upon deposit in the Collateral Account of such proceeds, the Collateral Agent shall, on the Purchase Contract Settlement Date, upon written direction of the Purchase Contract Agent (which direction shall include the calculation set forth below of the amount to be remitted by the Securities Intermediary), instruct the Securities Intermediary to remit a portion of such proceeds equal to the aggregate principal amount of such Convertible Notes to satisfy in full the Obligations of Holders of Corporate Units to pay the Purchase Price for the shares of Common Stock under the related Purchase Contracts, less the amount of any accrued and unpaid Contract Adjustment Payments payable to such Holders, and promptly remit the balance of such proceeds to the Purchase Contract Agent for payment to the Holders of Corporate Units, whereupon the Purchase Contract Agent shall make such payment on the Purchase Contract Settlement Date Pro Rata in accordance with their respective interests. With respect to any Separate Convertible Notes remarketed, the Custodial Agent shall remit such proceeds of the Successful Remarketing received from the Remarketing Agents pro rata to Holders of such Separate Convertible Notes. For the avoidance of doubt, Holders and holders of Separate Notes participating in a Successful Remarketing shall not be liable for payment of any remarketing fee.
(iii) If, in spite of its reasonable effortsIn addition, the Remarketing Agents cannot Agent shall be under no obligation to remarket the Convertible Notes on or prior to Bonds after the second Remarketing Date at a price not less than the Remarketing Price (other than to the Company) or a condition precedent set forth in the Remarketing Agreement is not fulfilled, the remarketing will be deemed to have failed (a “Failed Remarketing”). Following a Failed Remarketing, as of the Purchase Contract Settlement Date, each Holder of any Pledged Convertible Notes, unless such Holder Liquidity Provider has provided given written notice to the Purchase Contract Agent District of an “event of default” under the Liquidity Facility.
(c) In the event of: (i) a suspension or material limitation in substantially trading in securities generally on the form of Exhibit M hereto of its intention to settle the related Purchase Contract with separate cash prior to 5:00 p.m. (New York City timeStock Exchange, if in the reasonable judgment of the Remarketing Agent, it is impracticable to proceed with the remarketing of the Bonds; (ii) a general moratorium on the Business Day immediately preceding the Purchase Contract Settlement Date and on or prior to 5:00 p.m. (commercial banking activities in New York City time) on such Business Day delivered the Purchase Price to the Securities Intermediary for deposit declared by either Federal, State of California or State of New York authorities, if in the Collateral Account in lawful money reasonable judgment of the Remarketing Agent, it is impracticable to proceed with the remarketing of the Bonds; (iii) the engagement by the United States by certified in or cashiers check escalation of hostilities or wire transfer the declaration of a national emergency or war occurs, if in immediately available funds payable to or upon the order reasonable opinion of the Securities IntermediaryRemarketing Agent, shall be deemed it is impracticable to have exercised such Holder’s Put Right proceed with respect to the Pledged Convertible Notes and to have elected to apply the Proceeds remarketing of the Put Right equal to the aggregate Purchase Price against such Holder’s obligation to pay the aggregate Purchase Price for the shares of Common Stock to be issued under the related Purchase Contracts in full satisfaction of such Holders’ Obligations under such Purchase Contracts. Following such application, if practicable by way of set-off, each such Holder’s Obligations, including to pay the Purchase Price for the shares of Common Stock, will be deemed to be satisfied in full, and upon written instruction from the Purchase Contract Agent, the Collateral Agent shall cause the Securities Intermediary to release the Pledged Convertible Notes from the Collateral Account and shall promptly transfer such Convertible Notes to the Company. Upon (x) receipt by the Collateral Agent of a notice from the Purchase Contract Agent in substantially the form of Exhibit N hereto promptly after the receipt by the Purchase Contract Agent of a notice from a Holder of Corporate Units that such Holder has elected, in accordance with this Section 5.02(b)(iii), to settle the related Purchase Contract with separate cash and (y) payment by such Holder to the Securities Intermediary of the Purchase Price in accordance with the second sentence of this Section 5.02(b)(iii), in lieu of exercise of such Holder’s Put Right, the Securities Intermediary shall give the Purchase Contract Agent notice of the receipt of such payment in substantially the form of Exhibit O hereto and shall (A) invest the separate cash received in Permitted Investments consistent with the instructions of the Company as provided in Section 5.02(a)(v) with respect to Cash Settlement, (B) promptly release from the Pledge the Convertible Notes related to the Corporate Units as to which such Holder has paid such separate cash and (C) promptly Transfer all such Convertible Notes to the Purchase Contract Agent for distribution to such Holder, in each case free and clear of the Pledge created hereby, whereupon the Purchase Contract Agent shall Transfer such Convertible Notes in accordance with written instructions provided by the Holder thereof or, if no such instructions are given to the Purchase Contract Agent by the Holder, the Purchase Contract Agent shall hold such Convertible Notes, and any interest payment thereon, in the name of the Purchase Contract Agent or its nominee in trust for the benefit of such Holder until the expiration of the time period specified in the relevant abandoned property laws of the state where such Convertible Notes and interest payments thereon, if any, are held. Upon maturity of the Permitted Investments on the Purchase Contract Settlement Date, the Collateral Agent shall upon written instruction from the Company, and is hereby authorized to, (A) instruct the Securities Intermediary to remit to the Company on the Purchase Contract Settlement Date such portion of the proceeds of such Permitted Investments as is equal to the aggregate Purchase Price under all Purchase Contracts in respect of which separate cash has been paid as provided in this Section 5.02(b)(iii) (as set forth in the instruction from the Company) to the Company on the Purchase Contract Settlement Date, and (B) release any amounts in excess of such amount earned from such Permitted Investments to the Purchase Contract Agent for distribution to the Holders who have paid such separate cash pro-rata in proportion to the amount paid by such Holders under this Section 5.02(b)(iii).Bonds;
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Sources: Remarketing Agreement