EXHIBIT 4.18
, dated as of March 4, 2002 (the "Agreement") by and
among Ameren Corporation, a Missouri corporation (the "Company"), The Bank of
New York, not individually but solely as purchase contract agent,
attorney-in-fact and trustee for the Holders of Units (as defined in the
Purchase Contract Agreement (as defined herein)) (in any one or more of such
capacities, the "Purchase Contract Agent"), and Xxxxxxx, Xxxxx & Co., as
remarketing agent (the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Company has issued $345,000,000 aggregate stated amount of its
9.75% Adjustable Conversion-Rate Equity Security Units (the "Normal Units")
under the Purchase Contract Agreement, dated as of March 1, 2002 (the "Purchase
Contract Agreement"), by and between the Purchase Contract Agent and the
Company; and
WHEREAS, the Company issued concurrently as a component of the Normal Units
$345,000,000 aggregate principal amount of its Notes due May 15, 2007 (the
"Notes"); and
WHEREAS, the Notes that are a component of the Normal Units have been
pledged pursuant to the Pledge Agreement, dated as of March 1, 2002 (the "Pledge
Agreement"), by and among the Company, BNY Trust Company of Missouri, a Missouri
trust company, as collateral agent, custodial agent and securities intermediary
(in any one or more of such capacities, the "Collateral Agent"), and the
Purchase Contract Agent, to secure the Holders' obligations under the related
Purchase Contract on the Stock Purchase Date; and
WHEREAS, the Remarketing Agent will, subject to the terms and conditions
set forth herein or incorporated herein by reference, use commercially
reasonable best efforts on the Remarketing Date to remarket all of (i) the Notes
of Normal Unit Holders, other than the Notes of Normal Unit Holders who elect
not to participate in such remarketing, and (ii) the Separate Notes of Holders
who elect to participate in such remarketing, pursuant, respectively, to the
procedures set forth in Section 5.4(b) of the Purchase Contract Agreement and
Section 4.5(d) of the Pledge Agreement (each of which Sections is incorporated
herein by reference); and
WHEREAS, in the event the remarketing on the Remarketing Date is
unsuccessful pursuant to the Purchase Contract Agreement, the Remarketing Agent
will, subject to the terms and conditions set forth herein or incorporated
herein by reference, use commercially reasonable best efforts to remarket the
Notes to be included in the remarketing on each of the two Business Days
immediately following the Remarketing Date, and, if necessary, will use
commercially reasonable best efforts to remarket such Notes on each of the three
Business Days immediately preceding April 1, 2005 and, if necessary, will
further use commercially reasonable best efforts to remarket such Notes on the
third Business Day immediately preceding the Stock Purchase Date, in each case,
pursuant to the procedures set forth in Section 5.4(b) of the Purchase Contract
Agreement and Section 4.5(d) of the Pledge Agreement; and
WHEREAS, in the event of a successful remarketing on the Remarketing Date
or any Subsequent Remarketing Date, as the case may be, pursuant to the Purchase
Contract Agreement, the interest rate on the Notes included in such successful
remarketing will be reset on the Remarketing Date or on such Subsequent
Remarketing Date to the Remarketing Rate to be determined by the Remarketing
Agent such that the then current aggregate market value of the Notes will equal
at least 100.25% of the Remarketing Value as of the Remarketing Date or such
Subsequent Remarketing Date, as further described in the Notes and the Purchase
Contract Agreement, provided that in the determination of such Remarketing Rate,
the Company shall, if applicable, limit the Remarketing Rate to the maximum rate
permitted by applicable law; and
WHEREAS, the Company has requested Xxxxxxx, Sachs & Co. to act as the
Remarketing Agent, and, as such, to perform the services described herein; and
WHEREAS, Xxxxxxx, Xxxxx & Co. is willing to act as the 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, Sachs & Co., and Xxxxxxx, Xxxxx &
Co. hereby accepts such appointment, to the extent permitted by applicable law,
(i) as the Remarketing Agent to determine, in consultation with the Company, in
the manner provided for herein and in the Purchase Contract Agreement, the
Pledge Agreement, the Indenture and the Notes, the Remarketing Rate that, in the
view of the Remarketing Agent, will, when applied to the Notes (assuming, even
if not true, that all of the Notes are included in the remarketing), enable the
then current aggregate market value of the Notes to have a value equal to at
least 100.25% of the Remarketing Value as of the Remarketing Date or as of any
Subsequent Remarketing Date, as the case may be, provided that the Company, by
written notice to the Remarketing Agent prior to (A) the tenth Business Day
preceding the Remarketing Date, with respect to any remarketing to occur on
either the Remarketing Date or the two Business Days immediately following such
Remarketing Date, (B) the thirteenth Business Day preceding April 1, 2005 with
respect to any remarketing to occur on any of the three Business Days
immediately preceding April 1, 2005, or (C) the thirteenth Business Day
preceding the Stock Purchase Date with respect to any remarketing to occur on
the third Business Day immediately preceding the Stock Purchase Date, shall, if
applicable, limit the Remarketing Rate so that it does not exceed the maximum
rate permitted by applicable law, and (ii) as the exclusive Remarketing Agent
(subject to the right of such Remarketing Agent to appoint additional
remarketing agents hereunder as described below) to use commercially reasonable
best efforts to remarket the Notes to be included in the remarketing on the
Remarketing Date or any Subsequent Remarketing Date, as the case may be. The
Company agrees that the Remarketing Agent shall have the right, on 15 Business
Days written 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
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shall enter into an appropriate amendment to this Agreement to reflect the
addition of any such remarketing agent.
(b) Subject to the terms and conditions set forth herein, the Remarketing
Agent shall (i) use commercially reasonable best efforts to remarket on the
Remarketing Date the Notes that the Purchase Contract Agent or the Custodial
Agent, as the case may be, shall have notified the Remarketing Agent are to be
remarketed at a Remarketing Rate such that the then current aggregate market
value of the Notes is equal to at least 100.25% of the Remarketing Value, and
(ii) in the event the Remarketing Agent cannot establish such a Remarketing Rate
on the Remarketing Date, use commercially reasonable best efforts to remarket
such Notes on each of the two Business Days immediately following the
Remarketing Date and, if necessary, on each of the three Business Days
immediately preceding April 1, 2005, and, if necessary, on the third Business
Day immediately preceding the Stock Purchase Date, in each case at a Remarketing
Rate such that the then current aggregate market value of the Notes is equal to
at least 100.25% of the Remarketing Value, and (iii) in the event of a Failed
Remarketing or the Last Failed Remarketing, promptly return the Notes, if any,
included in such Failed Remarketing or the Last Failed Remarketing to the
Collateral Agent or the Custodial Agent, as the case may be, in accordance with
Section 4.5(b) (which Section is incorporated herein by reference) and Section
4.5(d) of the Pledge Agreement, respectively. After deducting the fee specified
in Section 3 below, the Agent-purchased Treasury Consideration and the remaining
proceeds, if any, of any such remarketing shall be delivered to the Purchase
Contract Agent in accordance with Section 4.5(a) of the Pledge Agreement (which
Section is incorporated herein by reference) and Section 5.4(b) of the Purchase
Contract Agreement. The right of each Holder of Normal Units or Separate Notes
to have Notes included in any remarketing shall be limited to the extent that
(i) the Remarketing Agent conducts a remarketing on the Remarketing Date or any
Subsequent Remarketing Date, as the case may be, pursuant to the terms of this
Agreement, (ii) the Notes included in a remarketing have been called for
redemption pursuant to the Purchase Contract Agreement and the Notes, (iii) the
Remarketing Agent is able to find a purchaser or purchasers for the Notes
included in a remarketing at a Remarketing Rate such that the then current
aggregate market value of the Notes is equal to at least 100.25% of the
Remarketing Value, or (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 the Remarketing Agent shall not have
any obligation whatsoever to purchase any Notes, whether in a remarketing held
on the Remarketing Date or on any Subsequent Remarketing Date or otherwise, and
shall in no way be obligated to provide funds to make payment upon tender of
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. The Company shall not be obligated in any case to provide
funds to make payment upon delivery of Notes for remarketing.
(d) Subject to the provisions of Section 4 hereof, the Company agrees (i)
to provide to the Remarketing Agent written notice of the Remarketing Date at
least 30 calendar days but not more than 60 calendar days prior to the
Remarketing Date and (ii) in the 30 calendar day period immediately preceding
the Remarketing Date and thereafter until the earlier of a successful
remarketing pursuant to the Purchase Contract Agreement or the Last Failed
Remarketing, to promptly notify the Remarketing Agent, of (x) any written notice
given to the Company by any "nationally recognized statistical rating
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organization" within the meaning of Rule 436(g)(2) (a "Rating Agency") under the
Securities Act of 1933 (the "Securities Act") of any decrease or any intended
decrease in any rating of any securities of the Company, of any intended change
in any such rating that does not indicate the direction of the possible change
of any such rating or of any surveillance or review, with possible negative
implications, of any such rating, in each case by any such Rating Agency, and
(y) any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or consolidated results of operations
of the Company and its subsidiaries, taken as a whole, only to the extent that
such change is not disclosed in documents filed by the Company with the
Securities and Exchange Commission or otherwise publicly available. The
obligations of the Company under this Section 2(d) shall be in addition to the
obligations of the Company under Section 20 hereof.
SECTION 3. FEES.
In the event of a successful remarketing pursuant to the terms hereof and
the Purchase Contract Agreement, the Remarketing Agent shall retain as a
remarketing fee (the "Remarketing Fee") an amount not exceeding 25 basis points
(0.25%) of the total proceeds received in connection with any such remarketing.
The Company shall pay all other costs and expenses incident to the performance
of the obligations of the Company hereunder and the out-of-pocket expenses of
the Remarketing Agent incurred in connection with acting as Remarketing Agent
hereunder (including reasonable fees and expenses of counsel).
SECTION 4. REPLACEMENT OR RESIGNATION OF REMARKETING AGENT.
(a) The Company may in its absolute discretion replace the Remarketing
Agent by giving written notice to the Remarketing Agent at any time on any day
subsequent to the date hereof and prior to 3:00 p.m., New York City time, on (i)
the eleventh Business Day immediately prior to the Remarketing Date in the case
of a remarketing to occur on the Remarketing Date or any of the two Business
Days immediately following the Remarketing Date, (ii) the fourteenth Business
Day immediately prior to April 1, 2005 in the case of a remarketing to occur on
any of the three Business Days immediately preceding April 1, 2005, or (iii) the
fourteenth Business Day immediately prior to the Stock Purchase Date in the case
of a remarketing to occur on the third Business Day immediately preceding the
Stock Purchase Date. Any such replacement by the Company shall become effective
immediately upon delivery of such notice to the Remarketing Agent. Upon
providing such notice, the Company shall use all reasonable efforts to appoint a
successor Remarketing Agent and to enter into a with such
successor as soon as reasonably practicable.
(b) The Remarketing Agent may in its absolute discretion resign at any time
and be discharged from its duties and obligations hereunder as the Remarketing
Agent by giving written notice to the Company at any time on any day subsequent
to the date hereof and prior to 3:00 p.m., New York City time, (i) on the
eleventh Business Day immediately prior to the Remarketing Date in the case of a
remarketing to occur on the Remarketing Date or any of the two Business Days
immediately following the Remarketing Date, (ii) the fourteenth Business Day
immediately prior to April 1, 2005 in the case of a remarketing to occur on any
of the three Business Days immediately preceding April 1, 2005, or (iii) the
fourteenth Business Day immediately prior to the Stock Purchase Date in the case
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of a remarketing to occur on the third Business Day immediately preceding the
Stock Purchase Date. Any such resignation shall become effective immediately
upon delivery of such notice to the Company. Upon receipt of such notice, the
Company shall use all reasonable efforts to appoint a successor Remarketing
Agent and to enter into a with such successor as soon as
reasonably practicable.
SECTION 5. DEALING IN THE SECURITIES.
The Remarketing Agent, when acting hereunder 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, Stripped Units, Normal Units or any
other securities of the Company. With respect to any Notes, Stripped Units,
Normal Units or any other securities of the Company owned by it, the Remarketing
Agent may exercise any vote or join in any action with like effect as if it did
not act in any capacity hereunder. The Remarketing 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. The Company or its affiliates may, to the
extent permitted by law, purchase any Notes that are remarketed by any
Remarketing Agent.
SECTION 6. REGISTRATION STATEMENT AND PROSPECTUS.
(a) In connection with a remarketing to occur on the Remarketing Date or
any Subsequent Remarketing Date, as the case may be, if and to the extent
required or deemed advisable, in the view of counsel (which need not be an
opinion) for each of the Remarketing Agent or the Company, by applicable law,
regulations or interpretations in effect at the time of the Remarketing Date or
such Subsequent Remarketing Date, as the case may be, the Company shall use its
reasonable best efforts, if requested by the Remarketing Agent, (i) (A) to have
a registration statement relating to the Notes effective under the Securities
Act, (B) to furnish a current preliminary prospectus and, if applicable, a
current preliminary prospectus supplement (in such quantities as the Remarketing
Agent may reasonably request), to be used by the Remarketing Agent in a
remarketing pursuant to the terms hereof, in each case by a date that is no
later than (x) three Business Days prior to the Remarketing Date in the case of
a remarketing to occur on the Remarketing Date or on any of the two Business
Days immediately following the Remarketing Date, (y) six Business Days prior to
April 1, 2005 in the case of a remarketing to occur on any of the three Business
Days immediately prior to April 1, 2005, or (z) six Business Days prior to the
Stock Purchase Date in the case of a remarketing to occur on the third Business
Day immediately prior to the Stock Purchase Date (or, in each such case, at such
earlier date as the Remarketing Agent may reasonably request), and (ii) to
furnish a current final prospectus and, if applicable, a final prospectus
supplement (in such quantities as the Remarketing Agent may reasonably request),
to be used by the Remarketing Agent in the remarketing pursuant to the terms
hereof, in each case by a date that is no later than three Business Days
immediately following the Remarketing Date or a Subsequent Remarketing Date, as
the case may be (or at such earlier date as the Remarketing Agent may reasonably
request). The Company shall pay all expenses relating thereto.
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(b) If in connection with a remarketing, it shall not be possible or
required or deemed advisable, in the view of counsel (which need not be an
opinion) for each of the Remarketing Agent or the Company, under applicable law,
regulations or interpretations in effect as of the Remarketing Date or any
Subsequent Remarketing Date, as the case may be, to register the offer and sale
by the Company of the Notes under the Securities Act as otherwise contemplated
by this Section 6, the Company (i) shall use its reasonable best 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 any remarketing pursuant to the terms
hereof without registration under the Securities Act pursuant to an exemption
therefrom, if available, including the exemption afforded by Rule 144A under the
Securities Act, (ii) if requested by the Remarketing Agent, shall use its
reasonable best efforts (A) to furnish a current preliminary remarketing
memorandum (in such quantities as the Remarketing Agent may reasonably request)
to be used by the Remarketing Agent in any remarketing pursuant to the terms
hereof, by a date that is not later than (x) three Business Days prior to the
Remarketing Date, in the case of a remarketing to occur on the Remarketing Date
or on any of the two Business Days immediately following the Remarketing Date,
(y) six Business Days prior to April 1, 2005 in the case of a remarketing to
occur on any of the three Business Days immediately prior to April 1, 2005, or
(z) six Business Days prior to the Stock Purchase Date in the case of a
remarketing to occur on the third Business Day immediately prior to the Stock
Purchase Date (or, in each such case, at such earlier date as the Remarketing
Agent may reasonably request), and (B) to furnish a current final remarketing
memorandum (in such quantities as the Remarketing Agent may reasonably request)
to be used by the Remarketing Agent in the remarketing pursuant to the terms
hereof by a date that is no later than three Business Days immediately following
the Remarketing Date or a Subsequent Remarketing Date, as the case may be (or at
such earlier date as the Remarketing Agent may reasonably request). The Company
shall pay all expenses relating thereto.
(c) 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 any remarketing.
(d) Any disclosure document or other materials delivered by the Company to
the Remarketing Agent, or otherwise authorized for use by the Company, including
any documents filed by the Company with the Securities and Exchange Commission
and incorporated by reference in such disclosure document, pursuant to this
Section 6 or otherwise for use in connection with the remarketing of the Notes
pursuant to this Agreement are collectively referred to as "Remarketing
Materials."
(e) The Company agrees not to make any reference to Xxxxxxx, Sachs & Co. or
any successor Remarketing Agent, as Remarketing Agent or otherwise, in any
Remarketing Materials or any other materials used by the Company in connection
with a remarketing of the Notes, without the prior written consent of Xxxxxxx,
Xxxxx & Co. or such successor, as the case may be, which consent shall not be
unreasonably withheld.
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SECTION 7. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to the Remarketing Agent as of the date
hereof, that:
(a) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Missouri, with power
and authority (corporate and other) to own its properties and conduct its
business and to enter and to perform its obligations under, or as contemplated
by, this Agreement; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification, except to the extent that the failure to be so qualified or to be
in good standing would not reasonably be expected to have a material adverse
effect on the general affairs, business prospects, management, financial
position, stockholders' equity or consolidated results of operations of the
Company and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(b) This Agreement has been duly authorized, executed and delivered by the
Company, and, assuming due authorization, execution and delivery by the
Remarketing Agent, will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization
and other similar laws relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a proceeding in equity or at
law) and requirements of reasonableness, good faith and fair dealing.
(c) The compliance by the Company with all of the provisions of this
Agreement, and the consummation of the transactions herein contemplated, will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or (with the giving of notice or lapse of time or both)
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, which would reasonably be expected to have a Material
Adverse Effect, nor will such action result in any violation of the provisions
of the articles of incorporation or by-laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; the execution, delivery
and performance of this Agreement will not require the approval or consent of
any holder or trustee of any debt or other obligations or securities of the
Company which will not have been obtained; the Securities and Exchange
Commission has issued a final order under the Public Utility Holding Company Act
of 1935, as amended, which order is in full force and effect and is sufficient
to authorize the transactions contemplated by this Agreement; no other consent,
approval, authorization, order, registration, filing or qualification of or with
any court or governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement, except such as have
been obtained and such consents, approvals, authorizations, orders,
registrations, filings or qualifications as may be required under state
securities or blue sky laws.
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SECTION 8. CONDITIONS TO THE REMARKETING AGENT'S OBLIGATIONS.
The obligations of the Remarketing Agent under this Agreement shall be
subject to the terms and conditions hereunder, including, without limitation,
the following conditions: (i) the Notes to be included in any remarketing have
not been called for redemption, (ii) the Remarketing Agent is able to find a
purchaser or purchasers for Notes included in any remarketing, using
commercially reasonable best efforts, at a price equal to at least 100.25% of
the Remarketing Value, (iii) the Purchase Contract Agent, the Collateral Agent,
the Custodial Agent, the Securities Intermediary, the Company and the Trustee
shall have performed their respective obligations in connection with any
remarketing pursuant to the terms hereof and pursuant to the Purchase Contract
Agreement, the Pledge Agreement and the Indenture (including, without
limitation, the giving of notice by the Purchase Contract Agent or the Custodial
Agent, as the case may be, to the Remarketing Agent of the aggregate principal
amount of the Notes of Normal Unit Holders or Separate Notes of Holders,
respectively, to be remarketed, no later than 10:00 a.m., New York City time, on
the third Business Day preceding the first day of a Remarketing Period and
delivery of the Notes to be remarketed to the Remarketing Agent by no later than
10:00 a.m., New York City time, on the Business Day immediately preceding the
first day of a Remarketing Period), (iv) no Event of Default (as defined in the
Indenture) shall have occurred and be continuing, (v) the authorization,
execution and delivery by the Company of a supplemental letter (a "Supplemental
Letter") to the Remarketing Agent containing representations, warranties and
covenants by the Company, and other provisions, if applicable, in form and
substance mutually agreed to by the Company and the Remarketing Agent, by no
later than 5:00 p.m., New York City time, on the twelfth Business Day
immediately prior to the Remarketing Date, (vi) the accuracy of the
representations and warranties of the Company included in this Agreement and the
Supplemental Letter on the Remarketing Date or any Subsequent Remarketing Date,
(vii) the performance by the Company of its covenants and other obligations
included herein, including, without limitation, its obligations under Section 6
hereof, or in the Supplemental Letter, (viii) the satisfaction of the other
conditions set forth in this Agreement and (ix) the ability to act as
Remarketing Agent hereunder pursuant to applicable law. If, after the applicable
time periods set forth in Section 4(b), any of the conditions set forth in this
Section 8 have not been satisfied, the Remarketing Agent may resign and be
discharged from its duties and obligations hereunder as the Remarketing Agent,
notwithstanding Section 4(b) hereof, on three Business Days' prior written
notice to the Company.
SECTION 9. TERMINATION OF .
This Agreement shall terminate as to any Remarketing Agent (a) which is
replaced, upon the delivery of such notice of such replacement pursuant to
Section 4(a) hereof, or (b) which resigns, upon the delivery by such Remarketing
Agent of a notice of resignation to the Company pursuant to Section 4(b) or
Section 8 hereof. Notwithstanding the foregoing, 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; provided,
however, that if any Remarketing Agent resigns prior to a successful remarketing
pursuant to Section 4(b) or Section 8 hereof, then the obligations set forth in
Section 3 hereof with respect to the Remarketing Fee shall not survive the
termination of this Agreement as to such resigning Remarketing Agent and no
Remarketing Fee shall be payable to such resigning Remarketing Agent in such
capacity. In addition, each former Remarketing Agent shall be entitled to the
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rights and benefits under Section 11 of this Agreement notwithstanding the
replacement or resignation of such Remarketing Agent.
SECTION 10. REMARKETING AGENT'S PERFORMANCE; DUTY OF CARE.
The duties and obligations of the Remarketing Agent shall be determined
solely by the express provisions hereunder. No implied covenants or obligations
of or against the Remarketing Agent shall be read into this Agreement. In the
absence of willful misconduct, bad faith or gross negligence on the part of the
Remarketing Agent, the Remarketing Agent may conclusively rely upon any document
furnished to it which purports to conform to the requirements hereunder as to
the truth of the statements expressed therein. The Remarketing 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. The Remarketing
Agent shall not have any obligation to determine whether there is any limitation
under applicable law on the Remarketing Rate on the Notes or, if there is any
such limitation, the maximum permissible Remarketing Rate on the Notes, and it
shall rely solely upon timely written notice from the Company pursuant to
Section 2(a) hereof as to whether or not there is any such limitation and, if
so, the maximum permissible Remarketing Rate. The Remarketing Agent and its
officers, directors, employees, agents, affiliates or other representatives and
each person, if any, who controls the Remarketing Agent shall not incur any
liability under this Agreement to the Company or its security holders or
creditors or to any beneficial owner or holder of Notes, or other securities,
either in its individual capacity or as Remarketing Agent, as the case may be,
for any action or failure to act in connection with any remarketing or otherwise
in connection with the transactions contemplated by this Agreement, except to
the extent that such liability has resulted from the willful misconduct, bad
faith or gross negligence of the Remarketing Agent. The provisions of this
Section 10 shall survive any termination of this Agreement and shall also
continue to apply to every Remarketing Agent notwithstanding its resignation or
removal.
SECTION 11. INDEMNIFICATION.
(a) The Company agrees to (i) indemnify and hold harmless the Remarketing
Agent against any losses, claims, damages, liabilities or expenses to which the
Remarketing Agent may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions or
claims in respect thereof) arise out of or are based upon (A) the failure to
have an effective registration statement under the Securities Act relating to
the Notes included in a remarketing, if required, or the failure to satisfy the
prospectus delivery requirements of the Securities Act because the Company
failed to provide the Remarketing Agent with an updated prospectus or prospectus
supplement, as applicable, for delivery in accordance with applicable law, (B)
any untrue statement or alleged untrue statement of a material fact contained in
the Remarketing Materials or (C) the omission or alleged omission to state in
the Remarketing Materials a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) indemnify and hold
harmless the Remarketing Agent against any breach by the Company of any
representation or warranty or failure by the Company to comply with any
obligation set forth herein, (iii) indemnify and hold harmless the Remarketing
Agent against any and all other losses, claims, damages, liabilities or expenses
that otherwise arise out of or are based upon or asserted against the
Remarketing Agent by any person in connection with or as a result of the
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Remarketing Agent acting as such pursuant to this Agreement or any other matter
referred to in this Agreement, except to the extent that any such losses,
claims, damages, liabilities or expenses referred to in this clause (iii) have
resulted from the Remarketing Agent's gross negligence, bad faith or willful
misconduct in performing the services that are the subject of this Agreement and
(iv) promptly reimburse the Remarketing Agent for any reasonable expenses
(including reasonable fees and expenses of counsel) when and as incurred by the
Remarketing Agent in connection with investigating or defending any such action
or claim; provided, however, that in the case of clauses (i)(B) and (C) above,
the Company shall not be liable in any such case to the Remarketing Agent to the
extent that any such loss, claim, damage, liability or expense arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Remarketing Materials in reliance upon and in
conformity with any written information provided by the Remarketing Agent
expressly for use therein.
(b) The Remarketing Agent will indemnify and hold harmless the Company
against any losses, claims, damages, liabilities or expenses to which the
Company may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions or claims in
respect thereof) arise out of or are based upon (A) any untrue statement or
alleged untrue statement of a material fact contained in the Remarketing
Materials, or (B) the omission or alleged omission to state in the Remarketing
Materials a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made or omitted in the Remarketing Materials in reliance
upon and in conformity with any written information provided by the Remarketing
Agent expressly for use therein and will promptly reimburse the Company for any
reasonable expenses (including reasonable fees and expenses of counsel) when and
as incurred by the Company in connection with investigating or defending any
such action or claim.
(c) Promptly after receipt by an indemnified party under Section 11(a) or
(b) hereof of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under Section 11(a) or (b) hereof, notify such indemnifying party in
writing of the commencement thereof, but the omission so to notify such
indemnifying party shall not relieve such indemnifying party from any liability
under Section 11(a) or (b) hereof except to the extent that it has been
prejudiced in any material respect by such failure and in no event shall such
failure relieve the indemnifying party from any liability that it may have to
any such indemnified party otherwise than under Section 11(a) or (b) hereof. In
case any such action shall be brought against any such indemnified party and it
shall notify such indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party under Section
11(a) or (b) hereof similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of such indemnified party, be counsel to such indemnifying party), and,
after notice from such indemnifying party to such indemnified party of its
election so to assume the defense thereof, such indemnifying party shall not be
liable to such indemnified party under Section 11(a) or (b) hereof for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. Notwithstanding the foregoing, the
indemnified party shall have the right to employ separate counsel at the
10
indemnifying party's expense and to control its defense of such action if (i)
the indemnifying party and the indemnified party agree to the retention of that
counsel, (ii) the indemnifying party does not assume the defense of such action
in a timely manner or (iii) the indemnified party reasonably objects to such
assumption on the ground that there may be legal defenses available to it that
are different from or in addition to those available to the indemnifying party
or another indemnified party. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(x) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (y) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of the indemnified party.
(d) If the indemnification provided for in this Section 11 is unavailable
to or insufficient to hold harmless an indemnified party under Section 11(a) or
(b) hereof in respect of any losses, claims, damages, liabilities or expenses
(or actions or claims in respect thereof) referred to therein, then each
indemnifying party under Section 11(a) or (b) hereof shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses (or actions or claims in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Remarketing Agent on the other
hand from the remarketing of the Notes. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law, then each
such indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Remarketing Agent on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or expenses
(or actions or claims in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Remarketing Agent on the other hand shall be deemed to be in
the same proportion as the aggregate principal amount of the Notes included in a
remarketing bear to the remarketing fees received by the Remarketing Agent under
this Agreement. The relative fault of the Company on the one hand and the
Remarketing Agent on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Remarketing Agent and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Remarketing Agent agree
that it would not be just and equitable if contribution pursuant to this Section
11(d) were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to above in this Section 11(d). The amount paid or payable by such an
indemnified party as a result of the losses, claims, damages, liabilities or
expenses (or actions or claims in respect thereof) referred to above in this
Section 11(d) shall be deemed to include any legal or other expenses incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 11(d), the
Remarketing Agent shall not be required to contribute any amount in excess of
the amount by which the remarketing fees received by the Remarketing Agent
11
exceeds the amount of any damages which the Remarketing Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Prior to entering into any agreement or arrangement with
respect to, or effecting, any proposed sale, exchange, dividend or other
distribution or liquidation of all or a significant portion of its assets in one
or a series of transactions or any significant recapitalization or
reclassification of its outstanding securities that does not directly or
indirectly provide for the assumption of the obligation of the Company set forth
in this Section 11, the Company will notify the Remarketing Agent in writing
thereof (if not previously so notified) and, if requested by the Remarketing
Agent, shall arrange in connection therewith alternative means of providing for
the obligations of the Company set forth in this Section 11, including the
assumption of such obligations by another party, insurance, surety bond or the
creation of an escrow, in each case in an amount and upon terms and conditions
satisfactory to the Remarketing Agent.
(e) The obligations of the Company under this Section 11 shall be in
addition to any liability that the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director, employee, agent,
affiliate or other representative and to each person, if any, who controls the
Remarketing Agent within the meaning of the Securities Act or the Securities
Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"). The obligations of the Remarketing
Agent under this Section 11 shall be in addition to any liability that the
Remarketing Agent may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director, employee, agent, affiliate or other
representative and to each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act.
SECTION 12. 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 13. TERM OF AGREEMENT.
(a) Unless otherwise terminated earlier as to any Remarketing Agent 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 third Business Day immediately following the Remarketing Date or any
Subsequent Remarketing Date, as applicable, in the case of any successful
remarketing held on any such date, or, in any event, the Business Day after the
Last Failed Remarketing. Anything herein to the contrary notwithstanding, the
provisions of Section 9 hereof and the provisions of Sections 3, 10, 11 and
13(b) hereof shall survive any termination or expiration of this Agreement and
remain in full force and effect.
(b) All representations and warranties included in this Agreement shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of the Remarketing Agent or any of their controlling
persons, or by or on behalf of the Company or the Purchase Contract Agent, and
shall survive any remarketing of the Notes.
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SECTION 14. SUCCESSORS AND ASSIGNS.
The rights and obligations of the Company hereunder may not be assigned or
delegated to any other person without the prior written consent of the
Remarketing Agent, which consent shall not be unreasonably withheld. The rights
and obligations of the Remarketing Agent hereunder may not be assigned or
delegated to any other person without the prior written consent of the Company,
which consent shall not be unreasonably withheld 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 and the Remarketing Agent and their
respective successors and assigns and any other indemnified parties (as
described in Section 11 hereof) and the successors, assigns, heirs and legal
representatives of such indemnified parties. The terms successors and assigns
shall not include any purchaser of Notes merely because of such purchase.
SECTION 15. HEADINGS.
Section headings have been inserted in this Agreement as a matter of
convenience of reference only, and it is agreed that such Section headings are
not a part of this Agreement and will not be used in the interpretation of any
provision of this Agreement.
SECTION 16. SEVERABILITY.
If any provision of this 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, as the case may be, invalid, inoperative or
unenforceable to any extent whatsoever.
SECTION 17. COUNTERPARTS.
This 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 18. AMENDMENTS.
This Agreement may be amended by any instrument in writing signed by the
parties hereto.
SECTION 19. 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
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Company, to Ameren Corporation, 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000,
Attention: Treasurer; if to the Remarketing Agent, to Xxxxxxx, Xxxxx & Co., 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department; and
if to the Purchase Contract Agent, to The Bank of New York, 000 Xxxxxxx Xxxxxx,
00X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Administration, or to
such other address as any of the above shall specify to the other in writing.
SECTION 20. INFORMATION.
The Company agrees to furnish the Remarketing Agent with such information
and documents as the Remarketing Agent may reasonably request in connection with
the transactions contemplated by this Agreement, and if Remarketing Materials
are delivered by the Company pursuant to Section 6 hereof, make reasonably
available to the Remarketing Agent and any accountant, attorney or other advisor
retained by the Remarketing 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. The Company is authorized, subject to
applicable law, to disclose any and all aspects of this potential transaction
that are necessary to support any U.S. federal income tax benefits expected to
be claimed with respect to such transaction, without the Remarketing Agent
imposing any limitation of any kind.
SECTION 21. WAIVER OF JURY TRIAL.
Any right to trial by jury with respect to any action or proceeding arising
in connection with or as a result of any matter referred to in this Agreement is
hereby waived by the parties hereto.
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IN WITNESS WHEREOF, 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.
AMEREN CORPORATION
By: /s/ Warner X. Xxxxxx
-------------------------------------
Name: Warner X. Xxxxxx
Title: Senior Vice President, Finance
CONFIRMED AND ACCEPTED:
XXXXXXX, SACHS & CO.
By: /s/ Xxxxxxx, Xxxxx & Co.
------------------------------
(Xxxxxxx, Sachs & Co.)
THE BANK OF NEW YORK
not individually but solely as
Purchase Contract Agent and
as attorney-in-fact for the
Holders of the Purchase Contracts
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
