EXHIBIT 8
, dated as of __________, 2002 (the
"Agreement") by and between The Xxxxxxxx Companies, Inc., a Delaware
corporation (the "Company"), [Agent], a New York banking corporation, not
individually but solely as Purchase Contract Agent (the "Purchase Contract
Agent") and as attorney-in-fact of the holders of Purchase Contracts (as
defined in the Purchase Contract Agreement (as defined herein)), and
[Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated]
(the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Company will issue $[ ] (or $[ ] if the underwriters'
overallotment option is exercised in full) aggregate Stated Amount of its
FELINE PACS (the "FELINE PACS") under the Purchase Contract Agreement,
dated as of __________, 2002, by and between the Purchase Contract Agent
and the Company (the "Purchase Contract Agreement"); and
WHEREAS, the FELINE PACS will initially consist of [ ] (or [
] if the underwriters' overallotment option is exercised in full) units
referred to as "Income PACS."
WHEREAS, the Company will issue concurrently in connection with
the issuance of the FELINE PACS $[ ] (or $[ ] if the underwriters'
overallotment option is exercised in full) aggregate principal amount of
Senior Notes due February 16, 2007 (the "Notes") of the Company; and
WHEREAS, the Notes forming a part of the Income PACS will be
pledged pursuant to the Pledge Agreement (the "Pledge Agreement"), dated as
of __________, 2002, by and among the Company, [Agent], as collateral agent
(the "Collateral Agent") and the Purchase Contract Agent, to secure an
Income PACS holder's obligations under the related Purchase Contract on the
Purchase Contract Settlement Date; and
WHEREAS, the Notes of the Income PACS holders and of the Note
holders electing to have their Notes remarketed will be remarketed by the
Remarketing Agent on the third Business Day immediately preceding November
16, 2004 (the "Initial Remarketing Date"); and
WHEREAS, in the event of a Failed Initial Remarketing, the Notes
of the Note holders electing to have their Notes remarketed and of the
Income PACS holders who have elected not to settle the Purchase Contracts
related to their Income PACS by Cash Settlement will be remarketed by the
Remarketing Agent on the third Business Day immediately preceding the
Purchase Contract Settlement Date; and
WHEREAS, in the event of a Successful Initial Remarketing, the
applicable interest rate on the Notes will be reset on the Initial
Remarketing Date, to the Reset Rate to be determined by the Reset Agent as
the rate that such Notes should bear in order for the Applicable Principal
Amount of the Notes to have an approximate aggregate market value of 100.5%
of the Treasury Portfolio Purchase Price on the Initial Remarketing Date,
provided that in the determination of such Reset Rate, the Company shall,
if applicable, limit the Reset Rate to the maximum rate permitted by
applicable law; and
WHEREAS, in the event of a Failed Initial Remarketing, the
applicable interest rate on the Notes that remain outstanding on and after
the Purchase Contract Settlement Date will be reset on the third Business
Day immediately preceding the Purchase Contract Settlement Date, to the
Reset Rate to be determined by the Reset Agent as the rate that such Notes
should bear in order to have an approximate market value of 100.5% of the
aggregate principal amount of the Notes on the third Business Day
immediately preceding the Purchase Contract Settlement Date, provided that
in the determination of such Reset Rate, the Company shall, if applicable,
limit the Reset Rate to the maximum rate permitted by applicable law; and
WHEREAS, the Company has requested [Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx")] to act as the
Reset Agent and as the Remarketing Agent, and as such to perform the
services described herein; and
WHEREAS, [Xxxxxxx Xxxxx] is willing to act as Reset Agent and
Remarketing Agent and as such to perform such duties on the terms and
conditions expressly set forth herein;
NOW, THEREFORE, for and in consideration of the covenants herein
made, and subject to the conditions herein set forth, the parties hereto
agree as follows:
Section 1. Definitions. Capitalized terms used and not defined in
this Agreement, in the recitals hereto or in the paragraph preceding such
recitals shall have the meanings assigned to them in the Purchase Contract
Agreement or, if not therein defined, the Pledge Agreement.
Section 2. Appointment and Obligations of Remarketing Agent. (a)
The Company hereby appoints [Xxxxxxx Xxxxx] and [Xxxxxxx Xxxxx] hereby
accepts such appointment, (i) as the Reset Agent to determine in
consultation with the Company, in the manner provided for herein and in the
Indenture (as defined in Schedule I hereto) (as in effect on the date of
this ) with respect to the Notes, (1) the Reset Rate
that, in the opinion of the Reset Agent, will, when applied to the Notes,
enable the Applicable Principal Amount of the Notes to have an approximate
aggregate market value of 100.5% of the Treasury Portfolio Purchase Price
as of the Initial Remarketing Date, and (2) in the event of a Failed
Initial Remarketing, the Reset Rate that, in the opinion of the Reset
Agent, will, when applied to the Notes, enable a Note to have an
approximate market value of 100.5% of its principal amount as of the third
Business Day preceding the Purchase Contract Settlement Date, provided, in
each case, that the Company, by notice to the Reset Agent prior to the
tenth Business Day preceding (x) November 16, 2004, in the case of the
Initial Remarketing (as defined below), or (y) the Purchase Contract
Settlement Date, in the case of the Secondary Remarketing (as defined
below), shall, if applicable, limit the Reset Rate so that it does not
exceed the maximum rate permitted by applicable law and (ii) as the
exclusive Remarketing Agent (subject to the right of Xxxxxxx Xxxxx to
appoint additional remarketing agents hereunder as described below) to (1)
remarket the Notes of the Note holders electing to have their Notes
remarketed and of the Income PACS holders on the Initial Remarketing Date,
for settlement on November 16, 2004 and (2) in the case of a Failed Initial
Remarketing, remarket the Notes of the Note holders electing to have their
Notes remarketed or of the Income PACS holders who have failed to notify
the Purchase Contract Agent, on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date, of their
intention to settle the related Purchase Contracts through Cash Settlement.
In connection with the remarketing contemplated hereby, the Remarketing
Agent will enter into a Supplemental (the
"Supplemental ") with the Company and the Purchase
Contract Agent, which shall either be (i) substantially in the form
attached hereto as Exhibit A (with such changes as the Company and the
Remarketing Agent may agree upon, it being understood that changes may be
necessary in the representations, warranties, covenants and other
provisions of the Supplemental due to changes in law
or facts and circumstances or in the event that [Xxxxxxx Xxxxx] is not the
sole remarketing agent, and with such further changes therein as the
Remarketing Agent may reasonably request), or (ii) in such other form as
the Remarketing Agent may reasonably request, subject to the approval of
the Company (such approval not to be unreasonably withheld) . Anything
herein to the contrary notwithstanding, [Xxxxxxx Xxxxx] shall not be
obligated to act as Remarketing Agent or Reset Agent hereunder unless the
Supplemental is in form and substance reasonably
satisfactory to [Xxxxxxx Xxxxx]. The Company agrees that [Xxxxxxx Xxxxx]
shall have the right, on 15 Business Days notice to the Company, to appoint
one or more additional remarketing agents so long as any such additional
remarketing agents shall be reasonably acceptable to the Company. Upon any
such appointment, the parties shall enter into an appropriate amendment to
this Agreement to reflect the addition of any such remarketing agent.
(b) Pursuant to the Supplemental , the
Remarketing Agent, either as sole remarketing agent or as representative of
a group of remarketing agents appointed as aforesaid, will agree, subject
to the terms and conditions set forth herein and therein, to use its
reasonable efforts to (i) remarket, on the Initial Remarketing Date, the
Notes that the Trustee (as such term is defined in the Indenture) and the
Purchase Contract Agent shall have notified the Remarketing Agent have been
tendered for, or otherwise are to be included in, the Initial Remarketing,
at a price per Note such that the aggregate price for the Applicable
Principal Amount of the Notes is approximately 100.5% of the Treasury
Portfolio Purchase Price and (ii) in the event of a Failed Initial
Remarketing, remarket, on the third Business Day immediately preceding the
Purchase Contract Settlement Date, the Notes that the Trustee and the
Purchase Contract Agent shall have notified the Remarketing Agent have been
tendered for, or otherwise are to be included in, the Secondary
Remarketing, at a price of approximately 100.5% of the aggregate principal
amount of such Notes.
Notwithstanding the preceding sentence, the Remarketing Agent
shall not remarket any Notes for a price less than the price necessary for
the Applicable Principal Amount of the Notes to have an aggregate price
equal to 100% of the Treasury Portfolio Purchase Price (the "Minimum
Initial Remarketing Price"), in the case of the Initial Remarketing, or the
aggregate principal amount of such Notes, in the case of the Secondary
Remarketing. After deducting the fee specified in Section 3 below, the
proceeds of such Initial Remarketing or Secondary Remarketing, as the case
may be, shall be paid to the Collateral Agent in accordance with Section
5.07 of the Pledge Agreement and Section 5.02 of the Purchase Contract
Agreement (each of which Sections are incorporated herein by reference).
The right of each holder of Notes or Income PACS to have Notes tendered for
the Initial Remarketing or the Secondary Remarketing, as the case may be,
shall be limited to the extent that (i) the Remarketing Agent conducts an
Initial Remarketing and, in the event of a Failed Initial Remarketing, a
Secondary Remarketing pursuant to the terms of this Agreement, (ii) Notes
tendered have not been called for redemption, (iii) the Remarketing Agent
is able to find a purchaser or purchasers for tendered Notes at a price of
not less than the Minimum Initial Remarketing Price, in the case of the
Initial Remarketing, and 100% of the principal amount thereof, in the case
of the Secondary Remarketing and (iv) such purchaser or purchasers deliver
the purchase price therefor to the Remarketing Agent as and when required.
(c) It is understood and agreed that neither the Remarketing Agent
nor the Reset Agent shall have any obligation whatsoever to purchase any
Notes, whether in the Initial Remarketing, Secondary Remarketing or
otherwise, and shall in no way be obligated to provide funds to make
payment upon tender of Notes for remarketing or to otherwise expend or risk
their own funds or incur or be exposed to financial liability in the
performance of their respective duties under this Agreement or the
Supplemental , and, without limitation of the
foregoing, the Remarketing Agent shall not be deemed an underwriter of the
remarketed Notes. The Company shall not be obligated in any case to provide
funds to make payment upon tender of Notes for remarketing.
Section 3. Fees. In the event of a Successful Initial Remarketing,
the Remarketing Agent shall retain as a remarketing fee (the "Remarketing
Fee") an amount not exceeding 25 basis points (0.25%) of the Minimum
Initial Remarketing Price from any amount received in connection with such
Initial Remarketing in excess of the Minimum Initial Remarketing Price. In
the event of a Successful Secondary Remarketing, the Remarketing Agent
shall retain as the Remarketing Fee an amount not exceeding 25 basis points
(0.25%), of the principal amount of the remarketed Notes from any amount
received in connection with such Secondary Remarketing in excess of the
aggregate principal amount of such remarketed Notes. In addition, the Reset
Agent shall, in either case, receive from the Company a reasonable and
customary fee (the "Reset Agent Fee"); provided, however, that if the
Remarketing Agent shall also act as the Reset Agent, then the Reset Agent
shall not be entitled to receive any such Reset Agent Fee. Payment of such
Reset Agent Fee shall be made by the Company on the Initial Remarketing
Date, in the case of a Successful Initial Remarketing, or on the third
Business Day immediately preceding the Purchase Contract Settlement Date,
in the case of a Successful Secondary Remarketing, in immediately available
funds or, upon the instructions of the Reset Agent, by certified or
official bank check or checks or by wire transfer.
Section 4. Replacement and Resignation of Remarketing Agent. (a)
The Company may in its absolute discretion replace Xxxxxxx Xxxxx as the
Remarketing Agent and as the Reset Agent hereunder by giving notice prior
to 3:00 p.m., New York City time (i) on the [eleventh] Business Day
immediately prior to November 16, 2004, or (ii) in the event of a Failed
Initial Remarketing, prior to 3:00 p.m., New York City time on the eleventh
Business Day immediately prior to the Purchase Contract Settlement Date,
provided, in either case, that the Company must replace [Xxxxxxx Xxxxx]
both as Remarketing Agent and as Reset Agent unless [Xxxxxxx Xxxxx] shall
otherwise agree. Any such replacement shall become effective upon the
Company's appointment of a successor to perform the services that would
otherwise be performed hereunder by the Remarketing Agent and the Reset
Agent. Upon providing such notice, the Company shall use all reasonable
efforts to appoint such a successor and to enter into a with such successor as soon as reasonably practicable. (b)
[Xxxxxxx Xxxxx] may resign at any time and be discharged from its duties
and obligations hereunder as the Remarketing Agent and/or as the Reset
Agent by giving notice prior to 3:00 p.m., New York City time (i) on the
[eleventh] Business Day immediately prior to November 16, 2004, or (ii) in
the event of a Failed Initial Remarketing, on the eleventh Business Day
immediately prior to the Purchase Contract Settlement Date. Any such
resignation shall become effective upon the Company's appointment of a
successor to perform the services that would otherwise be performed
hereunder by the Remarketing Agent and/or the Reset Agent. Upon receiving
notice from the Remarketing Agent and/or the Reset Agent that it wishes to
resign hereunder, the Company shall appoint such a successor and enter into
a remarketing agreement with it as soon as reasonably practicable.
Section 5. Dealing in the Notes. Each of the Remarketing Agent and
the Reset Agent, when acting hereunder or, in the case of the Remarketing
Agent, under the Supplemental Remarketing Agreement, or when acting in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold or deal in any of the Notes, Growth PACS, Income PACS or any
other securities of the Company. With respect to any Notes, Growth PACS
Units, Income PACS or any other securities of the Company owned by it, each
of the Remarketing Agent and the Reset Agent may exercise any vote or join
in any action with like effect as if it did not act in any capacity
hereunder. Each of the Remarketing Agent and the Reset Agent, in its
individual capacity, either as principal or agent, may also engage in or
have an interest in any financial or other transaction with the Company as
freely as if it did not act in any capacity hereunder.
Section 6. Registration Statement and Prospectus. (a) In
connection with the Initial Remarketing, if and to the extent required in
the view of counsel (which need not be an opinion) for either the
Remarketing Agent or the Company by applicable law, regulations or
interpretations in effect at the time of such Initial Remarketing, the
Company (i) shall use its reasonable efforts to have a registration
statement relating to the Notes effective under the Securities Act of 1933
prior to the third Business Day immediately preceding November 16, 2004,
(ii) if requested by the Remarketing Agent shall furnish a current
preliminary prospectus and, if applicable, a current preliminary prospectus
supplement to be used by the Remarketing Agent in the Initial Remarketing
not later than seven Business Days prior to November 16, 2004 (or such
earlier date as the Remarketing Agent may reasonably request) and in such
quantities as the Remarketing Agent may reasonably request, and (iii) shall
furnish a current final prospectus and, if applicable, a final prospectus
supplement to be used by the Remarketing Agent in the Initial Remarketing
not later than the third Business Day immediately preceding November 16,
2004 in such quantities as the Remarketing Agent may reasonably request,
and shall pay all expenses relating thereto.
(b) In the event of a Failed Initial Remarketing and in connection
with the Secondary Remarketing, if and to the extent required in the view
of counsel (which need not be an opinion) for either the Remarketing Agent
or the Company by applicable law, regulations or interpretations in effect
at the time of such Secondary Remarketing, the Company (i) shall use its
reasonable efforts to have a registration statement relating to the Notes
effective under the Securities Act of 1933 prior to the third Business Day
immediately preceding the Purchase Contract Settlement Date, (ii) if
requested by the Remarketing Agent, shall furnish a current preliminary
prospectus and, if applicable, a current preliminary prospectus supplement
to be used by the Remarketing Agent in the Secondary Remarketing not later
than seven Business Days prior to the Purchase Contract Settlement Date (or
such earlier date as the Remarketing Agent may reasonably request) and in
such quantities as the Remarketing Agent may reasonably request, and (iii)
shall furnish a current final prospectus and, if applicable, a final
prospectus supplement to be used by the Remarketing Agent in the Secondary
Remarketing not later than the third Business Day immediately preceding the
Purchase Contract Settlement Date in such quantities as the Remarketing
Agent may reasonably request, and shall pay all expenses relating thereto.
(c) If in connection with the Initial Remarketing or, in the event
of a Failed Initial Remarketing, the Secondary Remarketing, it shall not be
possible, in the view of counsel (which need not be an opinion) for either
the Remarketing Agent or the Company, under applicable law, regulations or
interpretations in effect at the time of such Initial Remarketing or such
Secondary Remarketing to register the offer and sale by the Company of the
Notes under the Securities Act of 1933 as otherwise contemplated by this
Section 6, the Company (i) shall use its reasonable efforts to take, or
cause to be taken, all action and to do, or cause to be done, all things
necessary, proper and advisable to permit and effectuate the offer and sale
of the Notes in connection with the Initial Remarketing or the Secondary
Remarketing, as the case may be, without registration under the Securities
Act of 1933 pursuant to an exemption therefrom, if available, including the
exemption afforded by Rule l44A under the rules and regulations promulgated
under the Securities Act of 1933 by the Securities and Exchange Commission,
(ii) if requested by the Remarketing Agent shall furnish a current
preliminary remarketing memorandum to be used by the Remarketing Agent in
the Initial Remarketing or the Secondary Remarketing, as the case may be,
not later than seven Business Days prior to November 16, 2004, in the case
of the Initial Remarketing, or the Purchase Contract Settlement Date, in
the case of the Secondary Remarketing (or in either case such earlier date
as the Remarketing Agent may reasonably request) and in such quantities as
the Remarketing Agent may reasonably request and (iii) shall furnish a
current final remarketing memorandum to be used by the Remarketing Agent in
the Initial Remarketing or the Secondary Remarketing, as the case may be,
not later than the third Business Day immediately preceding November 16,
2004, in the case of the Initial Remarketing, or the Purchase Contract
Settlement Date, in the case of the Secondary Remarketing, in such
quantities as the Remarketing Agent may reasonably request, and shall pay
all expenses relating thereto.
(d) The Company shall also take all such actions as may (upon
advice of counsel to the Company or the Remarketing Agent) be necessary or
desirable under state securities or blue sky laws in connection with the
Initial Remarketing and the Secondary Remarketing.
Section 7. Conditions to the Remarketing Agent's Obligations. (a)
The obligations of the Remarketing Agent and the Reset Agent under this
Agreement and, in the case of the Remarketing Agent, the Supplemental
Remarketing Agreement shall be subject to the terms and conditions of this
Agreement and the Supplemental Remarketing Agreement, including, without
limitation, the following conditions: (i) the Notes tendered for, or
otherwise to be included in the Initial Remarketing or Secondary
Remarketing, as the case may be, have not been called for redemption, (ii)
the Remarketing Agent is able to find a purchaser or purchasers for
tendered Notes (1) in the case of the Initial Remarketing, at a price not
less than Minimum Initial Remarketing Price, and (2) in the case of the
Secondary Remarketing, at a price not less than 100% of the principal
amount thereof, (iii) the Purchase Contract Agent, the Collateral Agent,
the Custodial Agent, the Company and the Trustee shall have performed their
respective obligations in connection with the Initial Remarketing and, in
the event of a Failed Initial Remarketing, in connection with the Secondary
Remarketing, in each case pursuant to the Purchase Contract Agreement, the
Pledge Agreement, the Indenture, this Agreement and the Supplemental
Remarketing Agreement (including, without limitation, giving the
Remarketing Agent notice of the Treasury Portfolio Purchase Price no later
than 5:00 p.m., New York City time, on the fourth Business Day prior to
November 16, 2004, in the case of the Initial Remarketing, and giving the
Remarketing Agent notice of the aggregate principal amount, as the case may
be, of Notes to be remarketed, no later than 5:00 p.m., New York City time,
on the fourth Business Day prior to the Purchase Contract Settlement Date,
in the case of the Secondary Remarketing, and, in each case, concurrently
delivering the Notes to be remarketed to the Remarketing Agent), (iv) no
Event of Default (as defined in the Indenture) shall have occurred and be
continuing, (v) the accuracy of the representations and warranties of the
Company included and incorporated by reference in this Agreement and the
Supplemental Remarketing Agreement or in certificates of any officer of the
Company or any of its subsidiaries delivered pursuant to the provisions
included or incorporated by reference in this Agreement or the Supplemental
Remarketing Agreement, (vi) the performance by the Company of its covenants
and other obligations included and incorporated by reference in this
Agreement and the Supplemental Remarketing Agreement, and (vii) the
satisfaction of the other conditions set forth and incorporated by
reference in this Agreement and the Supplemental Remarketing Agreement.
(b) If at any time during the term of this Agreement, any Event of
Default (as defined in the Indenture) or event that with the passage of
time or the giving of notice or both would become an Indenture Event of
Default has occurred and is continuing under the Indenture, then the
obligations and duties of the Remarketing Agent and the Reset Agent under
this Agreement and the Supplemental Remarketing Agreement shall be
suspended until such default or event has been cured. The Company will
promptly give the Remarketing Agent notice of all such defaults and events
of which the Company is aware.
Section 8. Termination of Remarketing Agreement. This Agreement
shall terminate as to any Remarketing Agent or Reset Agent that is replaced
on the effective date of its replacement pursuant to Section 4(a) hereof or
pursuant to Section 4(b) hereof. Notwithstanding any such termination, the
obligations set forth in Section 3 hereof shall survive and remain in full
force and effect until all amounts payable under said Section 3 shall have
been paid in full. In addition, each former Remarketing Agent and Reset
Agent shall be entitled to the rights and benefits under Section 10 of this
Agreement, notwithstanding the replacement or resignation of such
Remarketing Agent or Reset Agent.
Section 9. 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 Notes or, if there
is any such limitation, the maximum permissible Reset Rate on the Notes,
and they shall rely solely upon written notice from the Company (which the
Company agrees to provide prior to the tenth Business Day before November
16, 2004, in the case of the Initial Remarketing, and prior to the tenth
Business Day before Purchase Contract Settlement Date, in the case of the
Secondary Remarketing) as to whether or not there is any such limitation
and, if so, the maximum permissible Reset Rate. Neither the Remarketing
Agent nor the Reset Agent shall incur any liability under this Agreement or
the Supplemental Remarketing Agreement to any beneficial owner or holder of
Notes, or other securities, either in its individual capacity or as
Remarketing Agent or Reset Agent, as the case may be, for any action or
failure to act in connection with the Remarketing or otherwise in
connection with the transactions contemplated by this Agreement or the
Supplemental Remarketing Agreement. The provisions of this Section 9 shall
survive any termination of this Agreement and shall also continue to apply
to every Remarketing Agent and Reset Agent notwithstanding their
resignation or removal.
Section 10. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless the Remarketing Agent, the Reset
Agent and their respective directors, officers, employees, agents,
affiliates and each person, if any, who controls the Remarketing Agent or
the Reset Agent within the meaning of either Section 15 of the Securities
Act of 1933, as amended (the "1933 Act"), or Section 20 of the Securities
Exchange Act of 1934, as amended (the "1934 Act") (the Remarketing Agent,
the Reset Agent and each such person or entity being an "Indemnified
Party"), as follows:
(i) from and against any and all losses, claims, damages,
liabilities and expenses whatsoever, joint or several, as
incurred, to which such Indemnified Party may become subject under
any applicable federal or state law, or otherwise, and related to,
arising out of, or based on (A) the failure to have an effective
Registration Statement (as defined in the Supplemental Remarketing
Agreement) under the 1933 Act relating to the Notes, as the case
may be, if required, or the failure to satisfy the prospectus
delivery requirements of the 1933 Act because the Company failed
to provide the Remarketing Agent with a Prospectus (as defined in
the Supplemental Remarketing Agreement) for delivery, or (B) any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereto
(including any information deemed to be a part of the Registration
Statement at the time it became effective pursuant to paragraph
(b) of Rule 430A under the 1933 Act, if applicable), or the
omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein
not misleading, or (C) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary
prospectus or the Prospectus, or any amendment or supplement
thereto, or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or (D) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary
remarketing memorandum or any final remarketing memorandum, or any
amendment or supplement thereto, or the omission or alleged
omission therefrom of a material fact necessary in order to make
the statements therein, in the light or the circumstances under
which they were made, not misleading, or (E) any untrue statement
or alleged untrue statement of a material fact contained in any
other information (whether oral or written) or documents
(including, without limitation, any documents incorporated or
deemed to be incorporated by reference in any such information or
documents) provided by the Company for use in connection with the
remarketing of the Notes or any of the transactions related
thereto, or (F) any breach by the Company of any of the
representations, warranties or agreements included or incorporated
by reference in this Agreement or the Supplemental Remarketing
Agreement, or (G) any failure by the Company to make or consummate
the remarketing of the Notes (including, without limitation, any
Failed Initial Remarketing or Failed Secondary Remarketing) or the
withdrawal, recession, termination, amendment or extension of the
terms of such remarketing, or (H) any failure on the part of the
Company to comply, or any breach by the Company of, any of the
provisions included or incorporated by reference in this
Agreement, the Supplemental Remarketing Agreement, the Purchase
Contract Agreement, the Income PACS, the Growth PACS, the Pledge
Agreement, the Indenture or the Notes (collectively, the
"Operative Documents") or (I) the remarketing of the Notes, as the
case may be, or any other transaction contemplated by any of the
Operative Documents, or the engagement of the Remarketing Agent or
the Reset Agent pursuant to, or the performance by the Remarketing
Agent or the Reset Agent of the respective services contemplated
by, this Agreement or the Supplemental Remarketing Agreement,
whether or not the Initial Remarketing or the Secondary
Remarketing or the reset of the interest rate on the Notes as
contemplated herein actually occur;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever related to,
arising out of or based on any matter described in (i) above; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx
Xxxxx), incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever related to, arising out or based on any matter
described in (i) above, whether or not such Indemnified Party is a
party and whether or not such claim, action or proceeding is
initiated or brought by or on behalf of the Company to the extent
that any such expense is not paid under (i) or (ii) above;
provided, however, that the Company shall not be liable under clause (i)
(B), (i) (C), (i) (D) or (i) (E) to the extent any such loss, claim,
damage, liability or expense arises out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and
conformity with written information furnished to the Company by the
Remarketing Agent or the Reset Agent expressly for use in the Registration
Statement (or any amendment thereto), any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) or any preliminary or
final remarketing memorandum (or any amendment or supplement thereto) or
any other documents used in connection with remarketing of the Notes, as
the case may be; provided, further, that with respect to any untrue
statement or omission of a material fact made in any preliminary
prospectus, the indemnity agreement contained in this Section 10(a) shall
not inure to the benefit of the Remarketing Agent to the extent that any
such loss, claim, damage or liability of the Remarketing Agent occurs under
the circumstance where it shall have been determined by a court of
competent jurisdiction by final and nonappealable judgment that (w) the
Company had previously furnished copies of the Prospectus to [Xxxxxxx
Xxxxx], (x) delivery of the Prospectus was required to be made to such
person, (y) the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission of a material fact contained in the
preliminary prospectus was corrected in the Prospectus, and (z) there was
not sent or given to such person, at or prior to the written confirmation
of the sale of Notes to such person, a copy of the Prospectus and the
delivery thereof would have constituted a complete defense to such person's
claim in respect of such untrue statement or omission or alleged untrue
statement or omission.
The Company agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to
the Company or its respective security holders or creditors relating to or
arising out of the engagement of the Remarketing Agent or the Reset Agent
pursuant to, or the performance by the Remarketing Agent or the Reset Agent
of their respective services contemplated by, this Agreement or the
Supplemental Remarketing Agreement except to the extent that any loss,
claim, damage, liability or expense is found in a final judgment by a court
of competent jurisdiction to have resulted from the willful misconduct,
gross negligence or bad faith of the Remarketing Agent or the Reset Agent,
as the case may be.
The Company agrees that, without [Xxxxxxx Xxxxx]'s prior written
consent, it will not settle, compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any action
or claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 10 (whether or not [Xxxxxxx Xxxxx] or
any other Indemnified Party is an actual or potential party to such claim,
action or proceeding), unless such settlement, compromise or consent (i)
includes an unconditional release of each Indemnified Party from all
liability arising out of such litigation, investigation, proceeding, action
or claim and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an Indemnified
Party.
(b) If the indemnification provided for in Section 10(a) hereof is
for any reason unavailable to or insufficient to hold harmless an
Indemnified Party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then the Company shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such Indemnified Party, as incurred, (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on
the one hand and the Remarketing Agent and the Reset Agent on the other
hand from the remarketing of the Notes contemplated hereby or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on the one hand and of the Remarketing Agent and the Reset Agent on the
other hand in connection with the statements, omissions or other matters
which resulted in such losses, liabilities, claims, damages or expenses, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Remarketing Agent and the
Reset Agent on the other hand in connection with the remarketing of the
Notes contemplated hereby shall be deemed to be in the same respective
proportions as the aggregate principal amount of the Notes which are or are
to be remarketed bears to the aggregate fees actually received by the
Remarketing Agent and the Reset Agent under Section 3 hereof. The relative
fault of the Company on the one hand and the Remarketing Agent and the
Reset Agent on the other hand (i) in the case of an untrue or alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact, shall be determined by reference to, among other
things, whether such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or by the Remarketing
Agent or the Reset Agent on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission and (ii) in the case of any other action
or omission shall be determined by reference to, among other things,
whether such action or omission was taken or omitted to be taken by the
Company on the one hand, or by the Remarketing Agent or the Reset Agent, on
the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to prevent or correct such action or omission.
The Company, the Remarketing Agent and the Reset Agent agree that it would
not be just and equitable if contribution pursuant to this Section 10(b)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
above in this Section 10(b). The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an Indemnified Party and referred
to above in this Section 10(b) shall be deemed to include any legal or
other expenses incurred by such Indemnified Party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue or alleged untrue statement
or any such omission or alleged omission or any other such action or
omission; provided, however, that to the extent permitted by applicable
law, in no event shall the Remarketing Agent or the Reset Agent be required
to contribute any amount which, in the aggregate, exceeds the aggregate
fees received by them under Section 3 of this Agreement. No investigation
or failure to investigate by any Indemnified Party shall impair the
foregoing indemnification and contribution agreement or any rights an
Indemnified Party may have. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(c) In the event an Indemnified Party is requested or required to
appear as a witness in any action brought by or on behalf of or against the
Company, the Company agrees to reimburse the Remarketing Agent or the Reset
Agent, as the case may be, for all reasonable expenses, as incurred, which
are incurred by the Remarketing Agent or the Reset Agent, as the case may
be, in connection with such Indemnified Party's appearing and preparing to
appear as such a witness, including, without limitation, the reasonable
fees and disbursements of its legal counsel, and to compensate the
Remarketing Agent or the Reset Agent, as the case may be, in an amount to
be mutually agreed upon. In addition, the Company agrees to compensate the
Remarketing Agent or the Reset Agent, as the case may be, in an amount to
be mutually agreed upon per person per day for each day that an officer,
director or employee of the Remarketing Agent or the Reset Agent, as the
case may be, or any of their respective affiliates is involved in
preparation, discovery or testimony pertaining to any litigation, discovery
or investigation in connection with this Agreement or the Supplemental
Remarketing Agreement.
(d) Promptly after receipt by an Indemnified Party of written
notice of any claim or commencement of an action or proceeding with respect
to which indemnification may be sought hereunder, such Indemnified Party
will notify the Company in writing of such claim or of the commencement of
such action or proceeding, but failure to so notify the Company will not
relieve the Company from any liability which it may have to such
Indemnified Party under this indemnification and contribution agreement,
and in any event will not relieve the Company from any other liability that
it may have to such Indemnified Party. Xxxxxxx Xxxxx shall have the right
to select counsel in connection with any transaction for which any
Indemnified Party may be entitled to indemnification or contribution
hereunder, provided that in no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel, for all Indemnified Parties
in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances.
(e) Anything herein or in the Supplemental Remarketing Agreement
to the contrary notwithstanding, the provisions of this Section 10, and the
rights of the Remarketing Agent, the Reset Agent and the other Indemnified
Parties hereunder, shall be in addition to, and not in limitation of, any
rights or benefits (including, without limitation, rights to
indemnification or contribution) which the Remarketing Agent, the Reset
Agent or any other Indemnified Party may have under any other instrument or
agreement.
Section 11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without
regard to principles of conflicts of laws.
Section 12. Term of Agreement. (a) Unless otherwise terminated in
accordance with the provisions hereof and except as otherwise provided
herein, this Agreement shall remain in full force and effect from the date
hereof until the first day thereafter on which no Notes are outstanding,
or, if earlier, the Business Day immediately following November 16, 2004,
in the case of a Successful Initial Remarketing, or the Business Day
immediately following the Purchase Contract Settlement Date, in the case of
a Successful Secondary Remarketing. Anything herein to the contrary
notwithstanding, the provisions of the last section of Section 8 hereof and
the provisions of Sections 3, 9, 10 and 12(b) hereof shall survive any
termination of this Agreement and remain in full force and effect.
(b) All representations and warranties included or incorporated by
reference in this Agreement, or the Supplemental Remarketing Agreement, or
contained in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Remarketing
Agent, the Reset Agent or any of their controlling persons, or by or on
behalf of the Company or the Purchase Contract Agent, and shall survive the
remarketing of the Notes.
Section 13. Successors and Assigns. The rights and obligations of
the Company and the Purchase Contract Agent (both in its capacity as
Purchase Contract Agent and as attorney-in-fact) hereunder may not be
assigned or delegated to any other person without the prior written consent
of the Remarketing Agent and the Reset Agent. The rights and obligations of
the Remarketing Agent and the Reset Agent hereunder may not be assigned or
delegated to any other person without the prior written consent of the
Company, except that the Remarketing Agent shall have the right to appoint
additional remarketing agents as provided herein. This Agreement shall
inure to the benefit of and be binding upon the Company, the Purchase
Contract Agent, the Remarketing Agent and the Reset Agent and their
respective successors and assigns and the other Indemnified Parties (as
defined in Section 10 hereof) and the successors, assigns, heirs and legal
representatives of the Indemnified Parties. The terms "successors" and
"assigns" shall not include any purchaser of Notes or Notes merely because
of such purchase.
Section 14. Headings. Section headings have been inserted in this
Agreement and the Supplemental Remarketing Agreement as a matter of
convenience of reference only, and it is agreed that such section headings
are not a part of this Agreement or the Supplemental Remarketing Agreement
and will not be used in the interpretation of any provision of this
Agreement or the Supplemental Remarketing Agreement.
Section 15. Severability. If any provision of this Agreement or
the Supplemental Remarketing Agreement shall be held or deemed to be or
shall, in fact, be invalid, inoperative or unenforceable as applied in any
particular case in any or all jurisdictions because it conflicts with any
provisions of any constitution, statute, rule or public policy or for any
other reason, then, to the extent permitted by law, such circumstances
shall not have the effect of rendering the provision in question invalid,
inoperative or unenforceable in any other case, circumstances or
jurisdiction, or of rendering any other provision or provisions of this
Agreement or the Supplemental Remarketing Agreement, as the case may be,
invalid, inoperative or unenforceable to any extent whatsoever.
Section 16. Counterparts. This Agreement and the Supplemental
Remarketing Agreement may be executed in counterparts, each of which shall
be regarded as an original and all of which shall constitute one and the
same document.
Section 17. Amendments. This Agreement and the Supplemental
Remarketing Agreement may be amended by any instrument in writing signed by
the parties hereto. The Company and the Purchase Contract Agent agree that
they will not enter into, cause or permit any amendment or modification of
the Purchase Contract Agreement, the Indenture, the Pledge Agreement, the
Notes, the FELINE PACS or any other instruments or agreements relating to
the Notes or the FELINE PACS which would in any way affect the rights,
duties or obligations of the Remarketing Agent or the Reset Agent without
the prior written consent of the Remarketing Agent or the Reset Agent, as
the case may be.
Section 18. Notices. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or
pursuant hereto shall be made in writing or transmitted by any standard
form of telecommunication, including telephone or telecopy, and confirmed
in writing. All written notices and confirmations of notices by
telecommunication shall be deemed to have been validly given or made when
delivered or mailed, registered or certified mail, return receipt requested
and postage prepaid. All such notices, requests, consents or other
communications shall be addressed as follows: if to the Company, to The
Xxxxxxxx Companies, Inc., Xxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer; if to the Remarketing Agent or Reset
Agent, to [Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, at World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000], Attention: [Xxxx Xxxxxxxx], with a copy to Xxxxx Xxxx & Xxxxxxxx,
000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000, Attention: [ ]; and if to
the Purchase Contract Agent, to [ ], ___________________________________ or
to such other address as any of the above shall specify to the other in
writing.
Section 19. Information. The Company agrees to furnish the
Remarketing Agent and the Reset Agent with such information and documents
as the Remarketing Agent or the Reset Agent may reasonably request in
connection with the transactions contemplated by this Remarketing Agreement
and the Supplemental Remarketing Agreement, and make reasonably available
to the Remarketing Agent, the Reset Agent and any accountant, attorney or
other advisor retained by the Remarketing Agent or the Reset Agent such
information that parties would customarily require in connection with a due
diligence investigation conducted in accordance with applicable securities
laws and cause the Company's officers, directors, employees and accountants
to participate in all such discussions and to supply all such information
reasonably requested by any such person in connection with such
investigation.
IN WITNESSWHEREOF, each of the Company, the Purchase Contract
Agent and the Remarketing Agent has caused this Agreement to be executed in
its name and on its behalf by one of its duly authorized signatories as of
the date first above written.
THE XXXXXXXX COMPANIES, INC.
By:
-------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By:
-----------------------------------------------
Authorized Signatory
[ ]
not individually but solely as Purchase Contract Agent and
as attorney-in-fact for the holders of the Purchase Contracts
By:
-----------------------------------------------
Name:
Title:
Exhibit A to
Remarketing Agreement
Form of Supplemental Remarketing Agreement
Supplemental Remarketing Agreement dated ______________, ____
among The Xxxxxxxx Companies, Inc., a Delaware corporation (the "Company"),
[Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated] (the "Remarketing
Agent"), and [ ], as Purchase Contract Agent and attorney-in-fact for the
Holders of the Purchase Contracts (as such terms are defined in the
Purchase Contract Agreement referred to in Schedule I hereto)
NOW, THEREFORE, for and in consideration of the covenants herein
made, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Remarketing
Agreement dated as of [ ] (the "Remarketing Agreement") among the Company,
the Purchase Contract Agent and [Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated] or, if not defined in the Remarketing
Agreement, the meanings assigned to them in the Purchase Contract Agreement
(as defined in Schedule I hereto).
2. Registration Statement and Prospectus. The Company has filed
with the Securities and Exchange Commission, and there has become
effective, a registration statement on Form S-3, including a prospectus,
relating to the Notes (as such term is defined on Schedule I hereto). Such
Registration Statement, as amended, and including the information deemed to
be a part thereof pursuant to Rule 430A under the Securities Act of 1933,
as amended (the "1933 Act"), and the documents incorporated or deemed to be
incorporated by reference therein, are hereinafter called, collectively,
the "Registration Statement"; (the related preliminary prospectus dated
____________, including the documents incorporated or deemed to be
incorporated by reference therein, [and preliminary prospectus supplemented
dated __________] are hereinafter called, [collectively] the "preliminary
prospectus";] and the related prospectus dated _____________, including the
documents incorporated or deemed to be incorporated by reference therein,
[and prospectus supplement dated _________] are hereinafter called,
[collectively,] the "Prospectus." The Company has provided copies of the
Registration Statement [, the preliminary prospectus] and the Prospectus to
the Remarketing Agent, and hereby consents to the use of the [preliminary
prospectus] and the Prospectus in connection with the remarketing of the
Notes. (IN THE EVENT THAT A REGISTRATION STATEMENT IS NOT POSSIBLE OR NOT
REQUIRED, INSERT THE FOLLOWING: The Company has provided to the Remarketing
Agent, for use in connection with remarketing of the Notes (as such term is
defined on Schedule I hereto), a [preliminary remarketing memorandum and]
remarketing memorandum and [describe other materials, if any]. Such
remarketing memorandum (including the documents incorporated or deemed to
be incorporated by reference therein, [and] [describe other materials] are
hereinafter called, collectively, the "Prospectus," [and such preliminary
marketing memorandum (including the documents incorporated or deemed to be
incorporated by reference therein) is hereinafter called a "preliminary
prospectus")]. The Company hereby consents to the use of the Prospectus
[and the preliminary prospectus] in connection with the remarketing of the
Notes]. All references in this Agreement to amendments or supplements to
the Registration Statement [, the preliminary prospectus] or the Prospectus
shall be deemed to mean and include the filing of any document under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), which is
incorporated or deemed to be incorporated by reference in the Registration
Statement [, the preliminary prospectus] or the Prospectus, as the case may
be.
3. Provisions Incorporated by Reference.
(a) Subject to Section 3(b), the provisions of the Underwriting
Agreement (other than [Section 2, Section 3, Section 4, Section 7, Section
8 and Section 9] thereof) are incorporated herein by reference, mutatis
mutandis, and the Company hereby makes the representations and warranties,
and agrees to comply with the covenants and obligations, set forth in the
provisions of the Underwriting Agreement incorporated by reference herein,
as modified by the provisions of Section 3(b) hereof.
(b) With respect to the provisions of the Underwriting Agreement
incorporated herein, for the purposes hereof, (i) all references therein to
the "Underwriter" or "Underwriters" shall be deemed to refer to the
Remarketing Agent and all references to the "Representative" or the
"Representatives" shall be deemed to refer to Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated, ("Xxxxxxx Xxxxx"); (ii) all references therein to the
"Notes" or "Initial Notes" shall be deemed to refer to the Notes as defined
herein; (iii) all references therein to the "Closing Date" shall be deemed
to refer to the Remarketing Closing Date specified in Schedule I hereto;
(iv) all references therein to the "Registration Statement" [, the
"preliminary prospectus"] or the "Final Prospectus" shall be deemed to
refer to the Registration Statement[, the preliminary prospectus] and the
Prospectus, respectively, as defined herein; (v) all references therein to
this "Agreement," the "Underwriting Agreement," "hereof," "herein" and all
references of similar import, shall be deemed to mean and refer to this
Supplemental Remarketing Agreement; (vi) all references therein to "the
date hereof," "the date of this Agreement" and all similar references shall
be deemed to refer to the date of this Supplemental Remarketing Agreement;
(vii) all references therein to any "settlement date" shall be disregarded;
and (viii) [other changes, including changes relating to the offer and sale
of the Notes in connection with the Remarketing without registration under
the Securities Act of 1933 in reliance upon an exemption therefrom
(including the exemption afforded by Rule 144A)].]
4. Remarketing. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth or
incorporated by reference herein and in the Remarketing Agreement, the
Remarketing Agent agrees to use its reasonable efforts to remarket, in the
manner set forth in Section 2(b) of the Remarketing Agreement, the
aggregate principal amount, as the case may be, of Notes set forth in
Schedule I hereto at a purchase price not less than 100% of the [Minimum
Initial Remarketing Price] [aggregate principal amount of the Notes]. In
connection therewith, the registered holder or holders thereof agree, in
the manner specified in Section 5 hereof, to pay to the Remarketing Agent a
Remarketing Fee equal to an amount not exceeding 25 basis points (0.25%) of
[the Minimum Initial Remarketing Price] [such aggregate principal amount,)
payable by deduction from any amount received in connection from such
[Initial] [Secondary] Remarketing in excess of the [Minimum Initial
Remarketing Price] [aggregate principal amount of the Notes]. The right of
each holder of Notes to have Notes tendered for purchase shall be limited
to the extent set forth in the last sentence of Section 2(b) of the
Remarketing Agreement (which is incorporated by reference herein). As more
fully provided in Section 2 (c) of the Remarketing Agreement (which is
incorporated by reference herein), the Remarketing Agent is not obligated
to purchase any Notes in the remarketing or otherwise, and neither the
Company nor the Remarketing Agent shall be obligated in any case to provide
funds to make payment upon tender of Notes for remarketing.
5. Delivery and Payment. Delivery of payment for the remarketed
Notes by the purchasers thereof identified by the Remarketing Agent and
payment of the Remarketing Fee shall be made on the Remarketing Closing
Date at the location and time specified in Schedule I hereto (or such later
date not later than five Business Days after such date as the Remarketing
Agent shall designate), which date and time may be postponed by agreement
between the Remarketing Agent and the Company. Delivery of the remarketed
Notes and payment of the Remarketing Fee shall be made to the Remarketing
Agent against payment by the respective purchasers of the remarketed Notes
of the consideration therefor as specified herein, which consideration
shall be paid to the Collateral Agent for the account of the persons
entitled thereto by certified or official bank check or checks drawn on or
by a New York Clearing House bank and payable in immediately available
funds or in immediately available funds by wire transfer to an account or
accounts designated by the Collateral Agent.
If the Notes are not represented by a Global Security held by or
on behalf of The Depository Trust Company, certificates for the Notes shall
be registered in such names and denominations as the Remarketing Agent may
request not less than one full Business Day in advance of the Remarketing
Closing Date, and the Company, the Collateral Agent and the registered
holder or holders thereof agree to have such certificates available for
inspection, packaging and checking by the Remarketing Agent in New York,
New York not later than 1:00 p.m. on the Business Day prior to the
Remarketing Closing Date.
6. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone or telecopy, and confirmed in
writing. All written notices and confirmations of notices by
telecommunication shall be deemed to have been validly given or made when
delivered or mailed, registered or certified mail, return receipt requested
and postage prepaid. All such notices, requests, consents or other
communications shall be addressed as follows: if to the Company, to The
Xxxxxxxx Companies, Inc., [address] Attention: Chief Financial Officer; if
to the Remarketing Agent or Reset Agent, to [Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, at World Financial Center,
Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxxx], with a
copy to Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx
00000, Attention: [ ]; and if to the Purchase Contract Agent, to [ ] or to
such other address as any of the above shall specify to the other in
writing.
7. Conditions to Obligations of Remarketing Agent. Anything herein
to the contrary notwithstanding, the parties hereto agree (and the holders
and beneficial owners of the Notes will be deemed to agree) that the
obligations of the Remarketing Agent under this Agreement and the
Remarketing Agreement are subject to the satisfaction of the conditions set
forth in Section 7 of the Remarketing Agreement (which are incorporated
herein by reference), and to the satisfaction, on the Remarketing Closing
Date, of the conditions incorporated by reference herein from Section 6 of
the Underwriting Agreement as modified by Section 3(b) hereof (including,
without limitation, the delivery of opinions of counsel, officers'
certificates and accountants' comfort letters in form and substance
satisfactory to the Remarketing Agent, the accuracy as of the Remarketing
Closing Date of the representations and warranties of the Company included
and incorporated by reference herein and the performance by the Company of
its obligations under the Remarketing Agreement and this Agreement as and
when required hereby and thereby). In addition, anything herein or in the
Remarketing Agreement to the contrary notwithstanding, the Remarketing
Agreement and this Agreement may be terminated by the Remarketing Agent, by
notice to the Company at any time prior to the time of settlement on the
Remarketing Closing Date, if any of the events or conditions set forth in
Section 10 of the Underwriting Agreement, as modified by Section 3(b)
hereof, shall have occurred or shall exist.
8. Indemnity and Contribution. Anything herein to the contrary
notwithstanding, the Remarketing Agent shall be entitled to indemnity and
contribution on the terms and conditions set forth in the Remarketing
Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the Remarketing Agent.
Very truly yours,
THE XXXXXXXX COMPANIES, INC.
By:
------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
-----------------------------------------------
Authorized Signatory
[Add other Remarketing Agents, if any]
[ ]
not individually but solely as Purchase Contract
Agent and as attorney-in-fact for the holders of
the Purchase Contracts
By:
-----------------------------------------------
Name:
Title:
SCHEDULE I
Notes subject to the remarketing: Senior Notes due 2007 of the
Company (the "Notes").
Purchase Contract Agreement, dated as of January __, 2002 (the
"Purchase Contract Agreement") by and between The Xxxxxxxx Companies, Inc.,
a Delaware corporation, and [ ], a New York banking corporation.
Pledge Agreement dated as of January __, 2002 (the "Pledge Agreement")
by and between The Xxxxxxxx Companies, Inc., a Delaware corporation,
[ ], a national banking association, and [ ].
Indenture dated as of November 10, 1997 (the "Base Indenture") by
and between The Xxxxxxxx Companies, Inc., a Delaware corporation, and Bank
One National Association (as successor in interest to the First National
Bank of Chicago).
Supplemental Indenture, dated as of January __, 2002 (the
"Supplemental Indenture" and, together with the Base Indenture, the
"Indenture") by and between The Xxxxxxxx Companies, Inc., a Delaware
corporation, and Bank One, National Association (as successor in interest
to the First National Bank of Chicago).
[Minimum Initial Remarketing Price]
[Aggregate Principal Amount of Notes: $ ____________]
Underwriting Agreement, dated January __, 2002 (the "Underwriting
Agreement") among The Xxxxxxxx Companies, Inc. and Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, [ ], [ ]
and the other underwriters named therein.
Remarketing Closing Date, Time and Location:
