, dated as of January 28, 1998 (the
"Agreement"), among Tyson Foods, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx" and, in its capacity as the remarketing dealer hereunder,
the "Remarketing Dealer").
WHEREAS, the Company has issued $50,000,000 aggregate principal
amount of its Floating Rate MandatOry Par Put Remarketed Securities[SM] Due
February 1, 2010 (the "MOPPRS")(1), pursuant to an indenture, dated as of
June 1, 1995 (the "Indenture"), between the Company and The Chase Manhattan
Bank, as trustee (the "Trustee"); and
----------
(1) "Mandatory Par Put Remarketed Securities[SM]" and "MOPPRS[SM]" are
service marks owned by Xxxxxxx Xxxxx & Co., Inc.
WHEREAS, the MOPPRS are being sold initially pursuant to an
nderwriting agreement, dated January 28, 1998 (the "Underwriting
Agreement"), between the Company and Xxxxxxx Xxxxx; and
WHEREAS, the Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
33-58177) under the Securities Act of 1933, as amended (together with the
rules and regulations of the Commission thereunder (the "Securities Act")),
in connection with the offering of Debt Securities, including the MOPPRS,
which registration statement was declared effective by order of the
Commission on June 2, 1995, and has filed such amendments thereto and such
amended prospectuses as may have been required to the date hereof, and will
file such additional amendments thereto and such additional amended
prospectuses as may hereafter be required (such registration statement and
any amendments thereto including any prospectus relating to the offering of
MOPPRS by the Company constituting a part thereof, and all documents
incorporated therein by reference, as from time to time amended or
supplemented pursuant to the Securities Exchange Act of 1934, as amended
(together with the rules and regulations of the Commission thereunder (the
"Exchange Act")), the Securities Act, or otherwise, are referred to herein
as the "Registration Statement" and the "Prospectus," respectively, except
that if any revised prospectus shall be provided to the Remarketing Dealer
by the Company for use in connection with the remarketing of the MOPPRS
which differs from the Prospectus on file at the Commission at the time the
Registration Statement became effective (whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b)
of the Securities Act, the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Remarketing
Dealer for such use); and
WHEREAS, Xxxxxxx Xxxxx is prepared to act as the Remarketing
Dealer with respect to the remarketing of the MOPPRS on February 1, 2000
(the "Remarketing Date") pursuant to the terms of, but subject to the
conditions set forth in, this Agreement;
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:
23
Section 1. Definitions. Capitalized terms used and not
defined in this Agreement shall have the meanings assigned to them in the
Indenture (including the form of the MOPPRS).
Section 2. Representations and Warranties. (a) The Company
represents and warrants to the Remarketing Dealer as of the date hereof,
the Notification Date (as defined below), the Determination Date (as
defined below), the Remarketing Date and each date, if any, thereafter, of
delivery of MOPPRS in the initial distribution of MOPPRS by the Remarketing
Dealer (each such date being hereinafter referred to as a "Representation
Date"), that:
(i) it has made all the filings with the
Commission that it is required to make under the Exchange
Act (collectively, the "Exchange Act Documents"),
(ii) the applicable Remarketing Materials (as
defined herein) will comply as to form in all material
respects with the Exchange Act and will not include an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
and
(iii) the representations and warranties
contained in the Underwriting Agreement are true and correct
with the same force and effect as though expressly made at
and as of the date hereof.
(b) The Company further represents and warrants to the Remarketing
Dealer as of each Representation Date as follows:
(i) The financial statements, and the
related notes thereto, included or incorporated by reference
in the Remarketing Materials present fairly the consolidated
financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of
their operations and the changes in their consolidated cash
flows for the periods specified; said financial statements
have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the
supporting schedules included or incorporated by reference
in the Remarketing Materials present fairly the information
required to be stated therein. The pro forma financial
statements and the related notes thereto, if any, included
or incorporated by reference in the Remarketing Materials
present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements
and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof
are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and
circumstances referred to therein.
24
(ii) Since the respective dates as of which
information is given in the Remarketing Materials, there has
not been any material adverse change, or any development
known by the Company (after diligent inquiry) involving a
prospective material adverse change, in or affecting the
business, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries,
taken as a whole, otherwise than as set forth, incorporated
by reference or contemplated in the Remarketing Materials;
and except as set forth, incorporated by reference or
contemplated in the Remarketing Materials neither the
Company nor any of its subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary
course of business) material to the Company and its
subsidiaries taken as a whole.
(iii) The Company has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the state of its incorporation, with power
and authority (corporate and other) to own its properties
and conduct its business as described in the Remarketing
Materials, and has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so
as to require such qualification, other than where the
failure to be so qualified or in good standing would not
have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(iv) Each of the Company's subsidiaries that
constitutes a "significant subsidiary" within the meaning of
Rule 1-02 of Regulation S-X of the Commission (the "Material
Subsidiaries") has been duly incorporated and is validly
existing as a corporation under the laws of its jurisdiction
of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as
described in the Remarketing Materials, and has been duly
qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each
jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification,
other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole; and all the
outstanding shares of capital stock of each Material
Subsidiary of the Company have been duly authorized and
validly issued, are fully-paid and non-assessable, and
(except in the case of foreign subsidiaries, for directors'
qualifying shares) are owned by the Company, directly or
indirectly, free and clear of all liens, encumbrances,
security interests and claims.
(v) This Agreement has been duly authorized,
executed and delivered by the Company.
25
(vi) The MOPPRS have been duly authorized and
executed by the Company and authenticated, issued and
delivered in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor as
provided in the Underwriting Agreement and constitute valid
and binding obligations of the Company entitled to the
benefits provided by the Indenture; the Indenture has been
duly authorized and duly qualified under the Trust Indenture
Act of 1939, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Trust
Indenture Act"), and constitutes a valid and binding
instrument of the Company.
(vii) Neither the Company nor any of its
Material Subsidiaries is, or with the giving of notice or
lapse of time or both would be, in violation of or in
default under, its Certificate of Incorporation or By-Laws
or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of
its Material Subsidiaries is a party or by which it or any
of them or any of their respective properties is bound,
except for violations and defaults which individually and in
the aggregate are not material to the Company and its
subsidiaries taken as a whole or to the holders of the
MOPPRS; the issue and sale of the MOPPRS and the performance
by the Company of all of its obligations under the MOPPRS,
this Agreement, the Underwriting Agreement and the Indenture
and the consummation of the transactions herein and therein
contemplated (including the issuance and sale of the MOPPRS
and the use of the proceeds from the sale of the MOPPRS as
described in the Prospectus under the caption "Use of
Proceeds") will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default
or Repayment Event (as defined below) under, any indenture,
mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Company or any of its
Material Subsidiaries is a party or by which the Company or
any of its Material Subsidiaries is bound or to which any of
the property or assets of the Company or any of its Material
Subsidiaries is subject, nor will any such action result in
any violation of the provisions of the Certificate of
Incorporation or the By-Laws of the Company or any Material
Subsidiaries or any applicable law or statute or any order,
rule or regulation of any court or governmental agency or
body having jurisdiction over the Company, its Material
Subsidiaries or any of their respective properties; and no
consent, approval, authorization, order, registration or
qualification of or with any such court or governmental
agency or body is required for the issue, sale and
remarketing of the MOPPRS or the consummation by the Company
of the transactions contemplated by this Agreement, the
Underwriting Agreement or the Indenture, except such
consents, approvals, authorizations, registrations or
qualifications as have been obtained under the Securities
Act, the Trust Indenture Act and as may be required under
state securities or Blue Sky Laws in connection with the
purchase and distribution of the MOPPRS by the Remarketing
26
Dealer. As used herein, a "Repayment Event" means any event
or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such
indebtedness by the Company or any Material Subsidiary.
(viii) Other than as set forth, incorporated by
reference or contemplated in the Remarketing Materials,
there are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the
Company or any of its Material Subsidiaries is or may be a
party or to which any property of the Company or any of its
Material Subsidiaries is or may be the subject which, if
determined adversely to the Company, could individually or
in the aggregate reasonably be expected to have a material
adverse effect on the business, financial position,
stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole and, to the best of
the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others; and there are no contracts or other documents of a
character required to be filed as an exhibit to the
Remarketing Materials or required to be described in the
Remarketing Materials which are not filed or described as
required.
(ix) Other than as set forth, incorporated by
reference or contemplated in the Remarketing Materials, each
of the Company and its Material Subsidiaries is in
compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the
protection of human health or the environment or imposing
liability or standards of conduct concerning any Hazardous
Material (collectively, "Environmental Laws"), except where
such non-compliance with Environmental Laws could not,
singly or in the aggregate, reasonably be expected to have a
material adverse effect on the Company and its subsidiaries,
taken as a whole. The term "Hazardous Material" means (i)
any "hazardous substance" as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, as amended, (ii) any "hazardous waste" as defined by
the Resource Conservation and Recovery Act, as amended,
(iii) any petroleum or petroleum product, (iv) any
polychlorinated biphenyl, and (v) any pollutant or
contaminant or hazardous, dangerous, or toxic chemical,
material, waste or substance regulated under or within the
meaning of any other Environmental Law.
(x) Each of the Company and its Material
Subsidiaries owns or possesses the right to use the patents,
patent licenses, trademarks, service marks, trade names,
copyrights and know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) (collectively, the
"Intellectual Property") reasonably necessary to carry on
27
the business conducted by each as conducted on the date
hereof, except to the extent that the failure to own or
possess the right to use such Intellectual Property could
not, singly or in the aggregate, reasonably be expected to
have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and, except as set forth or
incorporated by reference in the Remarketing Materials,
neither the Company nor any Material Subsidiary has received
any notice of infringement of or conflict with asserted
rights of others with respect to any Intellectual Property,
except for notices the content of which if accurate could
not, singly or in the aggregate, reasonably be expected to
have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(xi) Other than as set forth, incorporated by
reference or contemplated in the Remarketing Materials, no
labor disputes exist with employees of the Company or of its
Material Subsidiaries that could, singly or in the
aggregate, reasonably be expected to have a material adverse
effect on the Company and its subsidiaries, taken as a
whole.
(xii) Ernst & Young LLP, who have certified
certain financial statements of the Company and its
subsidiaries, are independent public accountants as required
by the Securities Act.
(xiii) The Company is not an "investment
company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment
Company Act of 1940, as amended.
(xiv) Other than as set forth, incorporated by
reference or contemplated in the Remarketing Materials, the
Company and each of its Material Subsidiaries have all
licenses, franchises, permits, authorizations, approvals and
orders of and from all governmental and regulatory officials
and bodies that are necessary to own or lease and operate
their properties and conduct their businesses as described
in the Remarketing Materials and that are material in
relation to the business of the Company and its subsidiaries
taken as a whole.
(xv) The Company has complied with all
provisions of Section 517.075, Florida Statutes (Chapter
92-198, Laws of Florida).
(xvi) The MOPPRS are rated A3 by Xxxxx'x
Investor Service, Inc. and A- by Standard & Poor's Ratings
Services, a division of the XxXxxx-Xxxx Companies, Inc. or
such other rating as to which the Company shall have most
recently notified the Remarketing Dealer pursuant to Section
3(a) hereof.
28
(c) Additional Certifications. Any certificate signed by any
director or officer of the Company and delivered to the Remarketing Dealer
or to counsel for the Remarketing Dealer in connection with the remarketing
of the MOPPRS shall be deemed a representation and warranty by the Company
to the Remarketing Dealer as to the matters covered thereby.
Section 3. Covenants of the Company. The Company covenants
with the Remarketing Dealer as follows:
(a) The Company will provide prompt notice by telephone, confirmed
in writing (which may include facsimile or other electronic transmission),
to the Remarketing Dealer of (i) any notification or announcement by a
"nationally recognized statistical rating agency" (as defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act) with
regard to the ratings of any securities of the Company, including, without
limitation, notification or announcement of a downgrade in or withdrawal of
the rating of any security of the Company or notification or announcement
of the placement of any rating of any securities of the Company under
surveillance or review, including placement on CreditWatch or on Watch List
with negative implications, (ii) the occurrence at any time of any event
set forth in Sections 9(c)(i), (ii), (v) and (viii) of this Agreement or
(iii) the occurrence during the Remarketing Period (as defined below) of
any event set forth in Sections 9(c)(iii) and (vi) of this Agreement.
(b) The Company will furnish to the Remarketing Dealer:
(i) the Registration Statement and the Prospectus relating
to the MOPPRS (including in each case any amendment or
supplement thereto and each document incorporated therein by
reference); and
(ii) each Exchange Act Document filed after the date hereof.
The Company agrees to provide the Remarketing Dealer with as many
copies of the foregoing written materials and other Company approved
information as the Remarketing Dealer may reasonably request for use in
connection with the remarketing of MOPPRS and consents to the use thereof
for such purpose.
(c) If, at any time during the period commencing 15 days prior to
the Notification Date to the later of the Remarketing Date or such later
date, if any, as Remarketing Material may be delivered in connection with
the initial distribution of MOPPRS by the Remarketing Dealer (the
"Remarketing Period"), any event or condition known to the Company relating
to or affecting the Company, any subsidiary thereof or the MOPPRS shall
occur which could reasonably be expected to cause any of the reports,
documents, materials or information referred to in paragraph 3(b)(ii) above
or any document incorporated therein by reference (collectively, the
"Remarketing Materials") to contain an untrue statement of a material fact
or omit to state a material fact, the Company shall promptly notify the
Remarketing Dealer in writing of the circumstances and details of such
event or condition.
(d) So long as the MOPPRS are outstanding, the Company will file
all documents required to be filed with the Commission pursuant to the
Exchange Act within the time periods required by the Exchange Act.
29
(e) The Company will comply with the Securities Act, the Exchange
Act and the Trust Indenture Act so as to permit the completion of the
remarketing of the MOPPRS as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the Securities
Act to be delivered in connection with sales of the MOPPRS, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Remarketing Dealer or for the Company, to amend
the Registration Statement or amend or supplement the Prospectus in order
that the Prospectus will not include any untrue statements of a material
fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it shall be
necessary, in the opinion of such counsel, at any such time to amend the
Registration Statement or file a new registration statement or amend or
supplement the Prospectus or issue a new prospectus in order to comply with
the requirements of the Securities Act and the Commission's interpretations
of the Securities Act, the Company, at its expense, will promptly (i)
prepare and file with the Commission such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, or prepare and
file any such new registration statement and prospectus as may be necessary
for such purpose, (ii) furnish to the Remarketing Dealer such number of
copies of such amendment, supplement or other document as the Remarketing
Dealer may reasonably request and (iii) furnish to the Remarketing Dealer
an officers' certificate, an opinion, including a statement as to the
absence of material misstatements in or omissions from the Registration
Statement and Prospectus, as amended or supplemented, of counsel for the
Company satisfactory to the Remarketing Dealer and a "comfort letter" from
the Company's independent accountants, in each case in form and substance
reasonably satisfactory to the Remarketing Dealer, of the same tenor as the
officers' certificate, opinion and comfort letter, respectively, delivered
pursuant to the Underwriting Agreement, but modified to relate to the
Registration Statement and Prospectus as amended or supplemented to the
date thereof or such new registration statement and prospectus.
(f) The Company agrees that neither it nor any of its subsidiaries
or affiliates shall defease, purchase or otherwise acquire, or enter into
any agreement to defease, purchase or otherwise acquire, any of the MOPPRS
prior to the remarketing thereof by the Remarketing Dealer, other than
pursuant to Section 4(g) or 4(h) of this Agreement.
(g) Notwithstanding any provision to the contrary set forth in the
Indenture, the Company shall (i) use its best efforts to maintain the
MOPPRS in book-entry form with The Depository Trust Company ("DTC") or any
successor thereto and to appoint a successor depositary to the extent
necessary to maintain the MOPPRS in book-entry form, and (ii) waive any
discretionary right it otherwise has under the Indenture to cause the
MOPPRS to be issued in certificated form.
(h) The Company will comply with each of the covenants set forth
in the Underwriting Agreement.
Section 4. Appointment and Obligations of the Remarketing
Dealer. (a) Unless this Agreement is otherwise terminated in accordance
with Section 12 hereof, in accordance with the terms, but subject to the
conditions, of this Agreement, the Company hereby appoints Xxxxxxx Xxxxx,
and Xxxxxxx Xxxxx hereby accepts such appointment, as the exclusive
30
Remarketing Dealer with respect to $50,000,000 aggregate principal amount
of MOPPRS, subject further to repurchase of the MOPPRS in accordance with
clause (g) of this section or redemption of the MOPPRS in accordance with
clause (h) of this section.
(b) It is expressly understood and agreed by the parties hereto
that the obligations of the Remarketing Dealer hereunder with respect to
the MOPPRS to be remarketed on the Remarketing Date are conditioned on (i)
the issuance and delivery of such MOPPRS pursuant to the terms and
conditions of the Underwriting Agreement and (ii) the Remarketing Dealer's
election on the Notification Date to purchase the MOPPRS for remarketing on
the Remarketing Date. It is further expressly understood and agreed by and
between the parties hereto that, if the Remarketing Dealer has elected to
remarket the MOPPRS pursuant to clause (c) below, the Remarketing Dealer
shall not be obligated to set the Interest Rate to Maturity on any MOPPRS,
to remarket any MOPPRS or to perform any of the other duties set forth
herein at any time after the Notification Date if (i) any of the conditions
set forth in clause (a) or (b) of Section 9 hereof shall not have been
fully and completely met to the reasonable satisfaction of the Remarketing
Dealer, or (ii) any of the events set forth in clause (c) of Section 9
hereof shall have occurred.
(c) On a Business Day not later than five Business Days prior to
the Remarketing Date, the Remarketing Dealer will notify the Company and
the Trustee as to whether it elects to purchase the MOPPRS on the
Remarketing Date (the "Notification Date"). If, and only if, the
Remarketing Dealer so elects, the MOPPRS shall be subject to mandatory
tender to the Remarketing Dealer for remarketing on the Remarketing Date,
subject to the conditions described herein.
(d) Subject to the Remarketing Dealer's election to remarket the
MOPPRS as provided in clause (c) above, the Interest Rate to Maturity shall
be determined by the Remarketing Dealer by 3:30 p.m., New York City time,
on the third Business Day immediately preceding the Remarketing Date (the
"Determination Date") to the nearest one hundred-thousandth (0.00001) of
one percent per annum, and will be equal to the sum of 5.712% (the "Base
Rate") plus the Applicable Spread (as defined below), which will be based
on the Dollar Price (as defined below) of the MOPPRS.
The "Applicable Spread" will be the lowest bid indication,
expressed as a spread (in the form of a percentage or in basis points)
above the Base Rate, obtained by the Remarketing Dealer on the
Determination Date from the bids quoted by five Reference Corporate Dealers
(as defined below) for the full aggregate principal amount of the MOPPRS at
the Dollar Price, but assuming (i) an issue date equal to the Remarketing
Date, with settlement on such date without accrued interest, (ii) a
maturity date that is the Stated Maturity Date of the MOPPRS, and (iii) a
stated annual interest rate that is the Base Rate plus the spread bid by
the applicable Reference Corporate Dealer. If fewer than five Reference
Corporate Dealers bid as described above, then the Applicable Spread shall
be the lowest of such bid indications obtained as described above. The
Interest Rate to Maturity announced by the Remarketing Dealer, absent
manifest error, shall be binding and conclusive upon the Beneficial Owners
and Holders of the MOPPRS, the Company and the Trustee.
31
"Dollar Price" means, with respect to the MOPPRS, the present
value, as of the Remarketing Date, of the Remaining Scheduled Payments (as
defined below) discounted to the Remarketing Date, on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months), at the
Treasury Rate (as defined below).
"Reference Corporate Dealers" means each of Chase Securities
Inc., Credit Suisse First Boston Corporation, Xxxxxxx Xxxxx, X.X. Xxxxxx
Securities Inc. and Salomon Brothers Inc and their respective successors;
provided, however, that if any of the foregoing or their affiliates shall
cease to be a leading dealer of publicly traded debt securities of the
Company in The City of New York (a "Primary Corporate Dealer"), the
Remarketing Dealer shall substitute therefor another Primary Corporate
Dealer.
"Treasury Rate" means, with respect to the Remarketing Date,
the rate per annum equal to the semi-annual equivalent yield to maturity or
interpolated (on a day count basis) yield to maturity of the Comparable
Treasury Issues (as defined below), assuming a price for the Comparable
Treasury Issues (expressed as a percentage of its principal amount), equal
to the Comparable Treasury Price (as defined below) for the Remarketing
Date.
"Comparable Treasury Issues" means the United States Treasury
security or securities selected by the Remarketing Dealer as having an
actual or interpolated maturity or maturities comparable to the remaining
term of the MOPPRS being remarketed.
"Comparable Treasury Price" means, with respect to the
Remarketing Date, (a) the offer prices for the Comparable Treasury Issues
(expressed in each case as a percentage of its principal amount) on the
Determination Date, as set forth on "Telerate Page 500" (or such other page
as may replace Telerate Page 500), or (b) if such page (or any successor
page) is not displayed or does not contain such offer prices on the
Determination Date, (i) the average of the Reference Treasury Dealer
Quotations for the Remarketing Date, after excluding the highest and lowest
such Reference Treasury Dealer Quotations, or (ii) if the Remarketing
Dealer obtains fewer than four such Reference Treasury Dealer Quotations,
the average of all such Reference Treasury Dealer Quotations. "Telerate
Page 500" means the display designated as "Telerate Page 500" on Dow Xxxxx
Markets Limited (or such other page as may replace Telerate Page 500 on
such service) or such other service displaying the offer prices specified
in (a) above as may replace Dow Xxxxx Markets Limited. "Reference Treasury
Dealer Quotations" means, with respect to each Reference Treasury Dealer
and the Remarketing Date, the offer prices for the Comparable Treasury
Issues (expressed in each case as a percentage of its principal amount)
quoted in writing to the Remarketing Dealer by such Reference Treasury
Dealer by 3:30 p.m., on the Determination Date.
"Reference Treasury Dealer" means each of Credit Suisse First
Boston Corporation, Xxxxxx Brothers Inc., Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx &
Co. Incorporated and Salomon Brothers Inc and their respective successors;
provided, however, that if any of the foregoing or their affiliates shall
cease to be a primary U.S. Government securities dealer in The City of New
York (a "Primary Treasury Dealer"), the Remarketing Dealer shall substitute
therefor another Primary Treasury Dealer.
32
"Remaining Scheduled Payments" means, with respect to the
MOPPRS, the remaining scheduled payments of the principal thereof and
interest thereon, calculated at the Base Rate only, that would be due after
the Remarketing Date to and including the Stated Maturity Date; provided,
however, that if the Remarketing Date is not an Interest Payment Date with
respect to the MOPPRS, the amount of the next succeeding scheduled interest
payment thereon, calculated at the Base Rate only, will be reduced by the
amount of interest accrued thereon, calculated at the Base Rate only, to
the Remarketing Date.
(e) Subject to the Remarketing Dealer's election to remarket the
MOPPRS as provided in clause (c) above, the Remarketing Dealer shall notify
the Company, the Trustee and DTC by telephone, confirmed in writing (which
may include facsimile or other electronic transmission), by 4:00 p.m., New
York City time, on the Determination Date of the Interest Rate to Maturity
applicable to the MOPPRS effective from and including the Remarketing Date.
(f) In the event that the MOPPRS are remarketed as provided
herein, the Remarketing Dealer shall make, or cause the Trustee to make,
payment to the DTC Participant of each tendering Beneficial Owner of MOPPRS
subject to remarketing, by book entry through DTC by the close of business
on the Remarketing Date against delivery through DTC of such Beneficial
Owner's tendered MOPPRS, of 100% of the principal amount of the tendered
MOPPRS that have been purchased for remarketing by the Remarketing Dealer.
The Company shall make, or cause the Trustee to make, payment of interest
to each Beneficial Owner of MOPPRS due on the Remarketing Date by book
entry through DTC by the close of business on the Remarketing Date.
(g) In the event that (i) the Remarketing Dealer for any reason
does not notify the Company of the Interest Rate to Maturity by 4:00 p.m.,
New York City time, on the Determination Date, or (ii) prior to the
Remarketing Date, the Remarketing Dealer has resigned and no successor has
been appointed on or before the Determination Date, or (iii) at any time
after the Remarketing Dealer elects on the Notification Date to remarket
the MOPPRS any event as set forth in Section 9 or Section 12 of this
Agreement shall have occurred, or (iv) the Remarketing Dealer for any
reason does not elect, by notice to the Company and the Trustee not later
than the Notification Date, to purchase the MOPPRS for remarketing on the
Remarketing Date, or (v) the Remarketing Dealer for any reason does not
purchase all tendered MOPPRS on the Remarketing Date, the Company shall
repurchase the MOPPRS as a whole on the Remarketing Date at a price equal
to 100 % of the principal amount of the MOPPRS plus all accrued and unpaid
interest, if any, on the MOPPRS to the Remarketing Date. In any such case,
payment will be made by the Company through the Trustee to the DTC
Participant of each tendering Beneficial Owner of MOPPRS, by book-entry
through DTC by the close of business on the Remarketing Date against
delivery through DTC of such Beneficial Owner's tendered MOPPRS.
(h) If the Remarketing Dealer elects to remarket the MOPPRS as
provided in clause (c) above, then not later than the Business Day
immediately preceding the Determination Date, the Company shall notify the
Remarketing Dealer and the Trustee if the Company irrevocably elects to
exercise its right to redeem the MOPPRS, in whole but not in part, from the
Remarketing Dealer on the Remarketing Date at the Optional Redemption
Price. The "Optional Redemption Price" shall be the greater of (i) 100% of
the principal amount of the MOPPRS and (ii) the sum of the present values
of the Remaining Scheduled Payments thereon, as determined by the
33
Remarketing Dealer, discounted to the Remarketing Date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate, plus in either case accrued and unpaid interest from the
Remarketing Date on the principal amount being redeemed to the date of
redemption. If the Company elects to redeem the MOPPRS, it shall pay the
redemption price therefor in same-day funds by wire transfer to an account
designated by the Remarketing Dealer on the Remarketing Date.
(i) The Remarketing Dealer may, in accordance with the terms of
the Indenture, modify the tender and settlement procedures set forth in the
Indenture in order to facilitate the tender and settlement process.
(j) The tender and settlement procedures described above,
including provisions for payment by purchasers of MOPPRS in the remarketing
or for payment to selling Beneficial Owners of tendered MOPPRS, may be
modified to the extent required by DTC or, if agreed to by the Remarketing
Dealer in accordance with Section 9(c)(viii) of this Agreement, to the
extent required to facilitate the tender and remarketing of MOPPRS in
certificated form, if the book-entry system is no longer available for the
MOPPRS at the time of the remarketing.
Section 5. Fees and Expenses. Subject to Section 12 of this
Agreement, for its services in performing its duties set forth herein, the
Remarketing Dealer will not receive any fees or reimbursement of expenses
from the Company.
Section 6. Resignation of the Remarketing Dealer. The
Remarketing Dealer may resign and be discharged from its duties and
obligations hereunder at any time, such resignation to be effective 10 days
after delivery of a written notice to the Company and the Trustee of such
resignation. The Remarketing Dealer also may resign and be discharged from
its duties and obligations hereunder at any time, such resignation to be
effective immediately, upon termination of this Agreement in accordance
with Section 12(b) hereof. It shall be the sole obligation of the Company
to appoint a successor Remarketing Dealer.
Section 7. Dealing in the MOPPRS; Purchase of MOPPRS by the
Company. (a) Xxxxxxx Xxxxx, when acting as the Remarketing Dealer or in
its individual or any other capacity, may, to the extent permitted by law,
buy, sell, hold and deal in any of the MOPPRS. Xxxxxxx Xxxxx, as Holder or
Beneficial Owner of the MOPPRS, may exercise any vote or join as a Holder
or Beneficial Owner, as the case may be, in any action which any Holder or
Beneficial Owner of MOPPRS may be entitled to exercise or take pursuant to
the Indenture with like effect as if it did not act in any capacity
hereunder. The Remarketing Dealer, in its 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.
(b) The Company may purchase MOPPRS in the remarketing, provided
that the Interest Rate to Maturity established with respect to MOPPRS in
the remarketing is not different from the Interest Rate to Maturity that
would have been established if the Company had not purchased such MOPPRS.
Section 8. Information. (a) The Company agrees to furnish to
the Remarketing Dealer: (i) copies of each report or other document mailed
or filed by the Company with the Commission including the Registration
Statement and the Prospectus relating to the MOPPRS (including in each case
34
any documents incorporated therein by reference), (ii) notice of the
occurrence of any of the events set forth in clauses (c)(i), (ii), (v) and
(viii) of Section 9 hereof, and (iii) during the Remarketing Period, notice
of the occurrence of any of the events set forth in clauses (c)(iii) and
(vi) of Section 9 hereof and such other information as the Remarketing
Dealer may reasonably request from time to time, in such form as the
Remarketing Dealer may reasonably request, including, but not limited to,
the financial condition of the Company or any material subsidiary thereof.
The Company agrees to provide the Remarketing Dealer with as many copies of
the foregoing materials and information as the Remarketing Dealer may
reasonably request for use in connection with the remarketing and consents
to the use thereof for such purpose.
(b) If, at any time during the Remarketing Period, any event or
condition known to the Company relating to or affecting the Company, any
subsidiary thereof or the MOPPRS shall occur which might cause any of the
Remarketing Materials to include an untrue statement of a material fact or
omit to state a material fact, the Company shall promptly notify the
Remarketing Dealer in writing of the circumstances and details of such
event or condition.
Section 9. Conditions to Remarketing Dealer's Obligations.
The obligations of the Remarketing Dealer under this Agreement have been
undertaken in reliance on, and shall be subject to, (a) the due performance
in all material respects by the Company of its obligations and agreements
as set forth in this Agreement and the accuracy of the representations and
warranties in this Agreement and any certificate delivered pursuant hereto,
(b) the due performance in all material respects by the Company of its
obligations and agreements set forth in, and the accuracy in all material
respects as of the dates specified therein of the representations and
warranties contained in, the Underwriting Agreement, and (c) the further
condition that none of the following events shall have occurred after the
Remarketing Dealer elects on the Notification Date to remarket the MOPPRS:
(i) the rating of any securities of the
Company shall have been down-graded or put under
surveillance or review, including being put on CreditWatch
or Watch List with negative implications, or withdrawn by a
nationally recognized statistical rating agency;
(ii) without the prior written consent of the
Remarketing Dealer, the Indenture (including the MOPPRS)
shall have been amended in any manner, or otherwise contain
any provision not contained therein as of the date hereof,
that in either case in the judgment of the Remarketing
Dealer materially changes the nature of the MOPPRS or the
remarketing procedures (it being understood that,
notwithstanding the provisions of this clause (ii), the
Company shall not be prohibited from amending the
Indenture);
(iii) trading in any securities of the Company
shall have been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading
generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market shall have
been suspended or materially limited, or minimum or maximum
35
prices for trading shall have been fixed, or maximum ranges
for prices shall have been required, by any of said
exchanges or by such system or by order of the Commission,
the National Association of Securities Dealers, Inc. or any
other governmental authority, or if a banking moratorium
shall have been declared by either Federal or New York
authorities;
(iv) there shall have occurred any material
adverse change in the financial markets in the United States
or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective
change in national or international political, financial or
economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Remarketing
Dealer, impracticable to remarket the MOPPRS or to enforce
contracts for the sale of the MOPPRS;
(v) an Event of Default (as defined in the
Indenture), or any event which, with the giving of notice or
passage of time, or both, would constitute an Event of
Default, with respect to the MOPPRS shall have occurred and
be continuing;
(vi) a material adverse change in the
condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, shall have
occurred since the Notification Date or since the respective
dates as of which information is given in the Exchange Act
Documents;
(vii) if a prospectus is required under the
Securities Act to be delivered in connection with the
remarketing of the MOPPRS, the Company shall fail to furnish
to the Remarketing Dealer on the Remarketing Date the
officers' certificate, opinion and comfort letter referred
to in Section 3(e) of this Agreement and such other
documents and opinions as counsel for the Remarketing Dealer
may reasonably require for the purpose of enabling such
counsel to pass upon the sale of MOPPRS in the remarketing
as herein contemplated and related proceedings, or in order
to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of
the conditions, herein contained; or
(viii) the MOPPRS are not maintained in book-
entry form with DTC or any successor thereto; provided, that
the Remarketing Dealer, in its sole discretion and subject
to receipt of an opinion of counsel for the Company
reasonably satisfactory to the Remarketing Dealer, may waive
the foregoing condition if in the Remarketing Dealer's
judgment the Indenture and the MOPPRS can be amended, and
they are amended, so as to permit the remarketing of the
MOPPRS in certificated form and otherwise as contemplated
herein;
36
and the Remarketing Dealer shall have received on the
Remarketing Date a certificate of the chief executive officer and of the
chief financial officer of the Company, dated as of the Remarketing Date,
to the effect that (i) the representations and warranties in this Agreement
are true and correct with the same force and effect as though expressly
made at and as of the Remarketing Date, (ii) the Company has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Remarketing Date and (iii) none of the events
specified in the preceding clause (c) has occurred.
(d) In furtherance of the foregoing, the effectiveness of the
Remarketing Dealer's election on the Notification Date to remarket the
MOPPRS shall be subject to the condition that the Remarketing Dealer shall
have received a certificate of the chief executive officer, chief financial
officer or the treasurer of the Company, dated as of the Notification Date,
to the effect that (i) the Company has, prior to the Remarketing Dealer's
election on the Notification Date to remarket the MOPPRS, provided the
Remarketing Dealer with notice of all events as required under Section 3(a)
of this Agreement, (ii) the representations and warranties in this
Agreement are true and correct at and as of the Notification Date and (iii)
the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to the Notification
Date. Such certificate shall be delivered by the Company to the Remarketing
Dealer as soon as practicable following notification by the Remarketing
Dealer to the Company on the Notification Date of its election to remarket
the MOPPRS and in any event prior to the Determination Date.
In the event of the failure of any of the foregoing conditions,
the Remarketing Dealer may terminate its obligations under this Agreement.
Section 10. Indemnification. (a) The Company agrees to
indemnify and hold harmless the Remarketing Dealer and its officers,
directors and employees and each person, if any, who controls the
Remarketing Dealer within the meaning of Section 20 of the Exchange Act as
follows:
(i) against any loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of,
(A) the failure to have an effective registration statement
under the Securities Act relating to the MOPPRS, if
required, or the failure to satisfy the prospectus delivery
requirements of the Securities Act because the Company
failed to provide the Remarketing Dealer with an updated
Prospectus for delivery, if required, or (B) any untrue
statement or alleged untrue statement of a material fact
contained in any of the Remarketing Materials (including any
incorporated documents), or (C) the omission or alleged
omission therefrom of a material fact necessary to make the
statements therein, in the light of the circumstances in
which they were made, not misleading, or (D) any violation
by the Company of, or any failure by the Company to perform
any of its obligations under, this Agreement, or (E) the
acts or omissions of the Remarketing Dealer in connection
with its duties and obligations to determine the Interest
Rate to Maturity hereunder except those that are finally
judicially determined to be due to its gross negligence or
willful misconduct;
37
(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 investigation or proceeding by any
governmental agency or body, commenced or threatened, or of
any claim whatsoever arising out of, or based upon, any of
items (A) through (E) in clause (i) above; provided that
(subject to clause (d) below) such settlement is effected
with the written consent of the Company, which consent shall
not be unreasonably withheld; and
(iii) against any and all expense whatsoever,
as incurred (including the fees and disbursements of counsel
chosen by the Remarketing Dealer), reasonably 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 arising out of, or based upon, any of items
(A) through (E) in clause (i) above to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that the foregoing indemnity shall not apply
to any losses, liabilities, claims, damages and expenses to the extent
arising out of any untrue statement or omission made in reliance upon and
in conformity with written information furnished to the Company by the
Remarketing Dealer expressly for use in the Remarketing Materials.
(b) The Remarketing Dealer agrees to indemnify and hold harmless
the Company, its directors and each of its officers who signed the
Registration Statement, from and against any loss, liability, claim, damage
and expense, as incurred, but only with respect to untrue statements or
omissions made in the Remarketing Materials in reliance upon and in
conformity with information furnished to the Company in writing by the
Remarketing Dealer expressly for use in such Remarketing Materials. The
indemnity agreement in this paragraph shall extend upon the same terms and
conditions to each person, if any, who controls the Company within the
meaning of Section 20 of the Exchange Act.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account
of this indemnity agreement. In the case of parties indemnified pursuant to
clause (a) above, counsel to the indemnified parties shall be selected by
Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to clause
(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. 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
38
same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
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 claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 10
or Section 11 hereof (whether or not the indemnified parties are actual or
potential parties thereto), 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 or
claim and (ii) does not include a statement as to or an admission or fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by clause (a) (ii) effected without
its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) The indemnity agreements contained in this Section 10 shall
remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Remarketing Dealer, and shall
survive the termination or cancellation of this Agreement and the
remarketing of any MOPPRS hereunder.
Section 11. Contribution. If the indemnification provided for
in Section 10 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 each indemnifying
party 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 Dealer
on the other hand from the remarketing of the MOPPRS pursuant to this
Agreement 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 Dealer on the
other hand in connection with the acts, failures to act, statements or
omissions 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 Dealer on the other hand in connection with the
remarketing of the MOPPRS pursuant to this Agreement shall be deemed to be
in the same respective proportions as (i) the aggregate principal amount of
the MOPPRS, and (ii) the aggregate positive difference, if any, between the
price paid by the Remarketing Dealer for the MOPPRS tendered on the
Remarketing Date and the price at which the MOPPRS are sold by the
Remarketing Dealer in the remarketing.
39
The relative fault of the Company on the one hand and the
Remarketing Dealer on the other hand shall be determined by reference to,
among other things, the responsibility hereunder of the applicable party
for any act or failure to act relating to the losses, liabilities, claims,
damages or expenses incurred or, in the case of any losses, liabilities,
claims, damages or expenses arising out of any untrue or alleged untrue
statement of a material fact contained in any of the Remarketing Materials
or the omission or alleged omission to state a material fact therefrom,
whether any 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 or by the Remarketing Dealer and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Remarketing Dealer agree that it would not
be just and equitable if contribution pursuant to this Section 11 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 11. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred
to above in this Section 11 shall be deemed to include any legal or other
expenses reasonably 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 act or failure to act or untrue or
alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 11, the
Remarketing Dealer shall not be required to contribute any amount in excess
of the amount by which the total price at which the MOPPRS remarketed by it
and resold to the public were sold to the public exceeds the amount of any
damages which the Remarketing Dealer has otherwise been required to pay by
reason of any act or failure to act for which it is responsible hereunder
or any 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.
For purposes of this Section 11, each person, if any, who
controls the Remarketing Dealer within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights
to contribution as the Remarketing Dealer, and each director of the
Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company.
Section 12. Termination of or
Redetermination of Interest Rate to Maturity. (a) This Agreement shall
terminate as to the Remarketing Dealer on the effective date of the
resignation of the Remarketing Dealer pursuant to Section 6 hereof or the
repurchase of the MOPPRS by the Company pursuant to Section 4(g) hereof or
the redemption of the MOPPRS by the Company pursuant to Section 4(h)
hereof.
40
(b) In addition, the Remarketing Dealer may terminate all of its
obligations under this Agreement immediately by notifying the Company and
the Trustee of its election to do so, at any time on or before the
Remarketing Date, in the event that: (i) any of the conditions referred to
or set forth in Section 9(a) or (b) hereof have not been met or satisfied
in full, (ii) any of the events set forth in Section 9(c) shall have
occurred after the Remarketing Dealer elects on the Notification Date to
remarket the MOPPRS or (iii) the Remarketing Dealer reasonably determines
after consultation with the Company, that it shall not have received all of
the information, whether or not specifically referenced herein, necessary
to fulfill its obligations under this Agreement.
(c) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party,
except that, in the case of termination pursuant to Section 12(b) of this
Agreement, the Company shall reimburse the Remarketing Dealer for all of
its out-of-pocket expenses, including the reasonable fees and disbursements
of counsel for the Remarketing Dealer, and except further as set forth in
Section 12(d) below. Sections 1, 10, 11, 12(c) and 12(d) shall survive
such termination and remain in full force and effect.
(d) In the case of either (i) termination of this Agreement
pursuant to Section 12(b) or (ii) termination of this Agreement due to the
occurrence, prior to the Remarketing Dealer's election on the Notification
Date to remarket the MOPPRS, of any event set forth in Section 9(c)(ii),
(v) or (viii), upon the request of the Remarketing Dealer, the Company
shall immediately following the Call Price Determination Date (as defined
below) pay the Remarketing Dealer, in same-day funds by wire transfer to an
account designated by the Remarketing Dealer, the fair market value,
calculated as set forth below, of the Remarketing Dealer's right to
purchase and remarket the MOPPRS pursuant to this Agreement (the "Call
Price").
In the case of termination of this Agreement pursuant to
Section 12(b), the Call Price shall be equal to the excess of (i) the
present value of the Remaining Scheduled Payments determined as provided in
Section 4 over (ii) the aggregate principal amount of the MOPPRS.
In the case of the occurrence, prior to the Remarketing
Dealer's election on the Notification Date to remarket the MOPPRS, of any
event set forth in Section 9(c)(ii), (v) or (viii), the Call Price shall be
determined in good faith by the Remarketing Dealer in the following manner.
The Remarketing Dealer, with the consent of the Company, which consent
shall not be unreasonably withheld, shall select five reference market
dealers. The Remarketing Dealer shall request each reference market dealer
to provide a quotation, as of the same time and date, of the value of the
Call Price, determined on a commercially reasonable basis by reference,
among other factors, to the formulation described in the preceding
paragraph. The Call Price shall be equal to the average of the three
quotations remaining after disregarding the highest and lowest of such
quotations. If fewer than five quotations are obtained, the average of the
quotations obtained shall be used.
The Remarketing Dealer shall determine the applicable Call
Price on the Business Day immediately following the date of termination or
as soon as practicable thereafter (the "Call Price Determination Date").
41
The Remarketing Dealer shall promptly notify the Company of the Call Price
Determination Date and the Call Price by telephone, confirmed in writing
(which may include facsimile or other electronic transmission). The Call
Price, absent manifest error, shall be binding and conclusive upon the
parties hereto.
(e) This Agreement shall not be subject to termination by the
Company.
Section 13. Remarketing Dealer Performance, Duty of Care. The
duties and obligations of the Remarketing Dealer shall be determined solely
by the express provisions of this Agreement and the Indenture. No implied
covenants or obligations of or against the Remarketing Dealer shall be read
into this Agreement or the Indenture. In the absence of bad faith on the
part of the Remarketing Dealer, the Remarketing Dealer may conclusively
rely upon any document furnished to it, which purports to conform to the
requirements of this Agreement and the Indenture, as to the truth of the
statements expressed in any of such documents. The Remarketing Dealer shall
be protected in acting upon any document or communication reasonably
believed by it to have been signed, presented or made by the proper party
or parties. The Remarketing Dealer shall incur no liability to the Company
in its individual capacity or as Remarketing Dealer for any action or
failure to act in connection with the determination of the Interest Rate to
Maturity, except as a result of gross negligence or willful misconduct on
its part.
Section 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE.
Section 15. Term of Agreement. Unless otherwise terminated in
accordance with the provisions hereof, this Agreement shall remain in full
force and effect from the date hereof until the earlier of the first day
thereafter on which no MOPPRS are outstanding or the completion of the
remarketing of the MOPPRS. Regardless of any termination of this Agreement
pursuant to any of the provisions hereof, the obligations of the Company
pursuant to Sections 10, 11 and 12 hereof shall remain operative and in
full force and effect until fully satisfied.
Section 16. 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
Dealer, except that the rights and obligations of the Company may be
assigned and delegated to any successor of the Company permitted by Article
5 of the Indenture. The rights and obligations of the Remarketing Dealer
hereunder may not be assigned or delegated to any other person without the
prior written consent of the Company. This Agreement shall inure to the
benefit of and be binding upon the Company and the Remarketing Dealer and
their respective successors and assigns, and will not confer any benefit
upon any other person, partnership, association or corporation other than,
persons, if any, controlling the Remarketing Dealer within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, or any
indemnified party to the extent provided in Section 10 hereof, or any
person entitled to contribution to the extent provided in Section 11
hereof. The terms "successors" and "assigns" shall not include any
purchaser of any MOPPRS merely because of such purchase.
42
Section 17. 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 provisions of this Agreement.
Section 18. 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 provision of any constitution, statute, rule
or public policy or for any other reason, such circumstances shall not have
the effect of rendering the provision in question invalid, inoperative or
unenforceable in any other case, circumstance or jurisdiction, or of
rendering any other provision or provisions of this Agreement invalid,
inoperative or unenforceable to any extent whatsoever.
Section 19. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be regarded as an original and
all of which shall constitute one and the same document.
Section 20. Amendments. This Agreement may be amended by any
instrument in writing signed by each of the parties hereto so long as this
Agreement as amended is not inconsistent with the Indenture in effect as of
the date of any such amendment.
Section 21. Notices. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or
pursuant hereto shall be made in writing (which may include facsimile or
other electronic transmission) and shall be deemed to have been validly
given or made when delivered or mailed, registered or certified mail,
return receipt requested and postage prepaid, addressed as follows:
(a) to the Company:
Tyson Foods, Inc.
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx Xxx Xxxxxx
Facsimile No.: (000) 000-0000
(b) to Xxxxxxx Xxxxx:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxxx; Xxxxx Xxxxxxx
Facsimile Nos.: (000) 000-0000; (000) 000-0000
or to such other address as the Company or the Remarketing Dealer shall
specify in writing.
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IN WITNESS WHEREOF, each of the Company and the Remarketing Dealer
has caused this to be executed in its name and on its
behalf by one of its duly authorized officers as of the date first above
written.
TYSON FOODS, INC.
By /s/ Xxxxxx Xxxxxxx
------------------------
Name: Xxxxxx Xxxxxxx
Title: Chairman of the Board of Directors
and Chief Executive Officer
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By /s/ Xxxxxxx X. X'Xxxxx
----------------------------
Name: Xxxxxxx X. X'Xxxxx
Title:
44
