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EXHIBIT 4.4
, dated as of June 22, 1998 (the ""), between Xxxxx XxXxxxxxx Group, L.P., a Delaware limited partnership
(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 $200,000,000 aggregate principal amount
of its 7.0% MandatOry Par Put Remarketed Securities(SM) due June 15, 2028 (the
"MOPPRS(SM)"), pursuant to an indenture, dated as of November 26, 1996 (the
"Original Indenture"), among the Company, Simon Property Group, L.P., a Delaware
limited partnership (which, effective December 31, 1997, was merged into the
Company) and The Chase Manhattan Bank, as trustee (the "Trustee"), as
supplemented by a sixth supplemental indenture dated as of June 22, 1998,
between by the Company and the Trustee (the Original Indenture, as so
supplemented and as it may be further amended or supplemented, the "Indenture");
and
WHEREAS, the MOPPRS are being sold initially pursuant to a purchase
agreement, dated June 16, 1998 (the "Purchase Agreement"), among the Company,
Xxxxx XxXxxxxxx Group, Inc., a Maryland real estate investment trust which is a
general partner of the Company ("SDG"), SD Property Group, Inc., an Ohio
corporation which is the managing general partner of the Company ("SD Property")
and the Initial Purchasers named therein (collectively, the "Initial
Purchasers"), for whom Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx & Co. Incorporated
("Xxxxxx Xxxxxxx") are acting as representatives (in such capacity, the
"Representatives"); and
WHEREAS, the Company has prepared a preliminary offering memorandum
dated June 5, 1998 (the "Preliminary Offering Memorandum") and a final offering
memorandum dated June 16, 1998 (the "Final Offering Memorandum" and, together
with the Preliminary Offering Memorandum, the "Offering Memorandum") in
connection with the offering of the MOPPRS pursuant to an exemption from
registration under the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Company, in connection with the issuance of the MOPPRS,
has entered into a Registration Rights Agreement, dated June 22, 1998 (the
"Registration Rights Agreement"), relating to the MOPPRS; and
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"MandatOry Par Put Remarketed Securities(SM)" and "MOPPRS(SM)" are service marks
owned by Xxxxxxx Xxxxx & Co., Inc.
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WHEREAS, Xxxxxxx Xxxxx is prepared to act as the Remarketing Dealer
with respect to the remarketing of the MOPPRS on June 16, 2008 (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:
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). As used herein, the term MOPPRS shall include the
MOPPRS sold initially pursuant to the Purchase Agreement (the "Original MOPPRS")
or, as the case may be, the securities issued in exchange therefor as
contemplated by the Registration Rights Agreement (the "Exchange Offer MOPPRS")
or, if applicable, MOPPRS with respect to which a shelf registration statement
is declared effective as contemplated by the Registration Rights Agreement (the
"Shelf MOPPRS").
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) and the
Remarketing Date (each such date being hereinafter referred to as a
"Representation Date"), that (i) it has made all the filings with the Securities
and Exchange Commission (the "Commission") that it is required to make under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and the rules and
regulations thereunder (the "1934 Act Regulations") (collectively, the "1934 Act
Documents"), (ii) each 1934 Act Document complies in all material respects with
the requirements of the 1934 Act and 1934 Act Regulations, and each 1934 Act
Document did not at the time of filing with the Commission, and as of each
Representation Date, as modified or superseded by any subsequently filed 1934
Act Document on or prior to such Representation Date, 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; provided
that this representation and warranty shall not apply to statements in or
omissions from any 1934 Act Document made in reliance upon and in conformity
with information furnished to the Operating Partnership in writing by any
Initial Purchaser through the Representatives expressly for use in such 1934 Act
Document, and (iii) the applicable Remarketing Materials (as defined herein), as
of each Representation Date after the date hereof, as modified or superseded by
any subsequently filed 1934 Act Document on or prior to such Representation Date
(or, if applicable, by any document filed pursuant to the 1933 Act and the rules
and regulations thereunder (the "1933 Act Regulations")), 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.
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(a) The Company further represents and warrants to the Remarketing Dealer as of
each Representation Date as follows:
(i) The accountants who certified the financial statements and
supporting schedules included or incorporated by reference in the 1934
Act Documents are independent public accountants as required by the
1933 Act and the 1933 Act Regulations.
(ii) The financial statements included or incorporated by
reference in the 1934 Act Documents, together with the related
schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and
the statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified;
said financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included or incorporated by reference in the 1934
Act Documents present fairly in accordance with GAAP 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 1934 Act Documents 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.
(iii) Since the respective dates as of which information is given
in the 1934 Act Documents, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, assets, business affairs or business
prospects of the Company, SDG, M.S. Management Associates, Inc., a
Delaware corporation ("SPG Management Company"), M.S. Management
Associates (Indiana), Inc., an Indiana corporation ("Management
(Indiana)"), Simon MOA, Inc., an Indiana corporation ("MOA"), XxXxxxxxx
Properties Management, Inc., an Ohio corporation ("DRC Management," and
together with SPG Management Company, Management (Indiana), MOA and any
other management company in which either the Company or SDG may now or
hereafter have an interest, the "Management Companies"), any subsidiary
of the Company or SDG which may now or hereafter be qualified as a real
estate investment trust under the Internal Revenue Code of 1986, as
amended (collectively, the "Qualified Reit Subs") or any other now or
hereafter existing subsidiary of the Company (other than any Property
Partnership (as defined below)) (the Company, SDG, the Management
Companies, and the Qualified Reit Subs and such other subsidiaries
being
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sometimes hereinafter collectively referred to as the "Xxxxx XxXxxxxxx
Entities" and individually as a "Xxxxx XxXxxxxxx Entity"), or of any
entity which owns any SDG Property (as such term is defined in the
Offering Memorandum) or any direct interest in any SDG Property (the
"Property Partnerships") whether or not arising in the ordinary course
of business, which would be material to the Company and SDG, taken as a
whole (anything which would be material to the Company and SDG, taken
as a whole, being hereinafter referred to as "Material"; and such a
material adverse change, a "Material Adverse Effect"), (B) no casualty
loss or condemnation or other adverse event with respect to the SDG
Properties has occurred which would be Material, (C) there have been no
transactions or acquisitions entered into by the Xxxxx XxXxxxxxx
Entities or the Property Partnerships, other than those in the ordinary
course of business, which would be Material, (D) except for
distributions in amounts per unit that are consistent with past
practices, there has been no distribution of any kind declared, paid or
made by the Company on any of its general, limited and/or preferred
partnership interests, and (E) there has been no change in the capital
stock of the corporate Xxxxx XxXxxxxxx Entities or in the partnership
interests of the Company or any Property Partnership, or any increase
in the indebtedness of the Xxxxx XxXxxxxxx Entities, the Property
Partnerships or the SDG Properties which would be Material.
(iv) The Company is duly organized and validly existing as a
limited partnership in good standing under the laws of the State of
Delaware, with the requisite power and authority to own, lease and
operate its properties, to conduct the business in which it is engaged
and proposes to engage as described in the 1934 Act Documents and to
enter into and perform its obligations under this Agreement. The
Company is duly qualified or registered as a foreign partnership and is
in good standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify or register would not have a Material Adverse Effect.
(v) SDG has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Maryland
and has corporate power and authority to own, lease and operate its
properties and to conduct the business in which it is engaged and
proposes to engage as described in the 1934 Act Documents and to enter
into and perform its obligations under, or as contemplated under, this
Agreement. SDG is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not result in a
Material Adverse Effect.
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(vi) Each of the Xxxxx XxXxxxxxx Entities other than the Company
and SDG has been duly organized and is validly existing as a
corporation, limited partnership, limited liability company or other
entity, as the case may be, in good standing under the laws of the
state of its jurisdiction of incorporation or organization, as the case
may be, with the requisite power and authority to own, lease and
operate its properties, and to conduct the business in which it is
engaged or proposes to engage as described in the 1934 Act Documents.
Each such entity is duly qualified or registered as a foreign
corporation, limited partnership or limited liability company or other
entity, as the case may be, to transact business and is in good
standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify or register would not have a Material Adverse Effect. Except as
otherwise stated in the 1934 Act Documents, all of the issued and
outstanding capital stock or other equity interests of each such entity
has been duly authorized and validly issued and is fully paid and
non-assessable, has been offered and sold in compliance with all
applicable laws (including without limitation, federal or state
securities laws) and are owned, directly or indirectly, by the Company,
the Management Companies or SDG, in each case free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity
(collectively, "Liens"). No shares of capital stock or other equity
interests of such entities are reserved for any purpose, and there are
no outstanding securities convertible into or exchangeable for any
capital stock or other equity interests of such entities and no
outstanding options, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for shares of such capital stock or any other
securities of such entities, except as disclosed in the 1934 Act
Documents. No such shares of capital stock or other equity interests of
such entities were issued in violation of preemptive or other similar
rights arising by operation of law, under the charter or bylaws of such
entity or under any agreement to which any Xxxxx XxXxxxxxx Entity is a
party.
(vii) Each of the Property Partnerships is duly organized and
validly existing as a limited or general partnership, as the case may
be, in good standing under the laws of its respective jurisdiction of
formation. Each of the Property Partnerships has the requisite power
and authority to own, lease and operate its properties, and to conduct
the business in which it is engaged. Each of the partnership agreements
of the Property Partnerships is in full force and effect. Each of the
Property Partnerships is duly qualified or registered as a foreign
partnership to transact business and is in good standing in each
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or register
would not have a Material Adverse Effect.
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(viii) This Agreement has been duly authorized, executed and
delivered by the Company.
(ix) The Indenture has been duly authorized, executed and
delivered by the Company, and assuming due authorization, execution and
delivery by the Trustee, constitutes a valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law). The Original Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act").
(x) 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 Purchase Agreement, and constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), and are in the form contemplated
by, and entitled to the benefits of, the Indenture.
(xi) The Exchange Offer MOPPRS have been duly authorized by the
Company for issuance and sale pursuant to the Indenture and the
Registration Rights Agreement and, when executed, authenticated, issued
and delivered in the manner provided for in the Registration Rights
Agreement and the Indenture and delivered against payment of
consideration therefor in the form of Original MOPPRS, will constitute
valid and legally binding obligations of the Company, entitled to the
benefit of the Indenture, enforceable against the Company in accordance
with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding
in equity or at law). Such Exchange Offer MOPPRS will be in the form
contemplated by, and each registered holder thereof will be entitled to
the benefits of, the Indenture.
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(xii) None of the Xxxxx XxXxxxxxx Entities or any Property
Partnership is in violation of its charter, by-laws, certificate of
limited partnership or partnership agreement or other organizational
document, as the case may be, or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to which
any such entity is a party or by which or any of them may be bound, or
to which any of its property or assets or any SDG Property may be bound
or subject (collectively, "Agreements and Instruments"), except for
such violations or defaults that would not result in a Material Adverse
Effect.
(xiii) The execution, delivery and performance of this Agreement,
the Indenture and the MOPPRS and the consummation of the transactions
contemplated herein and in the Offering Memorandum (including the
issuance and sale of the MOPPRS and the use of the proceeds from the
sale of the MOPPRS as described in the Offering Memorandum under the
caption "Use of Proceeds") and compliance by the Company with its
obligations hereunder and under the Indenture and the MOPPRS have been
duly authorized by all necessary partnership action and do not and will
not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any assets, properties or
operations of the Company or any other Xxxxx XxXxxxxxx Entity or any
Property Partnership pursuant to, the Agreements and Instruments
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the
charter, by-laws, limited liability company agreement, certificate of
limited partnership or partnership agreement, as the case may be, of
the Company or any other Xxxxx XxXxxxxxx Entity or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
assets, properties or operations. 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 material portion of such indebtedness by the
Company, any other Xxxxx XxXxxxxxx Entity or any Property Partnership.
(xiv) There is no action, suit, proceeding, inquiry or
investigation before or by any court or governmental agency or body,
domestic or foreign, now pending, or to the knowledge of the Company
threatened against or affecting the Company, any other Xxxxx XxXxxxxxx
Entity, or any Property Partnership or any officer or director of the
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Company which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the assets, properties or operations thereof or the
consummation of this Agreement, or the transactions contemplated
herein. The aggregate of all pending legal or governmental proceedings
to which the Company or any other Xxxxx XxXxxxxxx Entity, or any
Property Partnership is a party or of which any of their respective
assets, properties or operations is the subject which are not described
in the 1934 Act Documents including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
(xv) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in connection
with the remarketing of the MOPPRS hereunder or the consummation of the
transactions contemplated by this Agreement or for the due execution,
delivery or performance of the Indenture by the Company, except such as
have been or shall have been obtained.
(xvi) Each of the Company, the other Xxxxx XxXxxxxxx Entities and
the Property Partnerships 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.
(xvii) The Company and the other Xxxxx XxXxxxxxx Entities and each
Property Partnership possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them except for such Governmental Licenses the failure of
which to obtain would not, singly or in the aggregate, result in a
Material Adverse Effect. The Company and the other Xxxxx XxXxxxxxx
Entities and each Property Partnership are in compliance with the terms
and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, result in a
Material Adverse Effect. All of the Governmental Licenses are valid and
in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not result in a Material Adverse
Effect. None of the Company, the other Xxxxx XxXxxxxxx Entities or any
Property Partnership has received any notice of proceedings relating to
the revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
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(xviii) No labor dispute with the employees of the Company or any
other Xxxxx XxXxxxxxx Entity or any Property Partnership exists or, to
the knowledge of the Company, is imminent, and the Company is not aware
of any existing or imminent labor disturbance by the employees of any
of its or any subsidiary's principal suppliers, manufacturers,
customers or contractors, which dispute or disturbance, in either case,
may reasonably be expected to result in a Material Adverse Effect.
(xix) Each of the Xxxxx XxXxxxxxx Entities and the Property
Partnerships has filed all federal, state, local and foreign income tax
returns which have been required to be filed (except in any case in
which an extension has been granted or the failure to so file would not
have a Material Adverse Effect) and has paid all taxes required to be
paid and any other assessment, fine or penalty levied against it, to
the extent that any of the foregoing is due and payable, except, in all
cases, for any such tax, assessment, fine or penalty that is being
contested in good faith.
(xx) To the knowledge of the Company, none of the Xxxxx XxXxxxxxx
Entities or the Property Partnerships is required to own, possess or
obtain the consent of any holder of any trademarks, service marks,
trade names or copyrights not now lawfully owned, possessed or licensed
in order to conduct the business now operated by such entity.
(xxi) The Company, the other Xxxxx XxXxxxxxx Entities and the
Property Partnerships have good and marketable title to the SDG
Properties free and clear of Liens, except (A) as otherwise disclosed
in the 1934 Act Documents, or referred to in any title policy for such
SDG Property, or (B) those which do not, singly or in the aggregate,
Materially (i) affect the value of such property or (ii) interfere with
the use made and proposed to be made of such property by the Company,
any other Xxxxx XxXxxxxxx Entity or any Property Partnership. All
leases and subleases under which the Company, any other Xxxxx XxXxxxxxx
Entity or any Property Partnerships hold properties are in full force
and effect, except for such which would not have a Material Adverse
Effect. None of the Company, the other Xxxxx XxXxxxxxx Entities or the
Property Partnerships has received any notice of any Material claim of
any sort that has been asserted by anyone adverse to the rights of the
Company, any other Xxxxx XxXxxxxxx Entity or the Property Partnerships
under any Material leases or subleases, or affecting or questioning the
rights of the Company, such other Xxxxx XxXxxxxxx Entity or the
Property Partnerships of the continued possession of the leased or
subleased premises under any such lease or sublease, other than claims
that would not have a Material Adverse Effect. All liens, charges,
encumbrances, claims or restrictions on or affecting any of the SDG
Properties and the assets of any Xxxxx XxXxxxxxx Entity or any Property
Partnership which are required to be disclosed in the 1934 Act
Documents are disclosed therein. None of the Xxxxx XxXxxxxxx Entities,
the Property
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Partnerships or any tenant of any of the SDG Properties is
in default under any of the ground leases (as lessee) or space leases
(as lessor or lessee, as the case may be) relating to, or any of the
mortgages or other security documents or other agreements encumbering
or otherwise recorded against, the SDG Properties, and the Company does
not know of any event which, but for the passage of time or the giving
of notice, or both, would constitute a default under any of such
documents or agreements, in each case, other than such defaults that
would not have a Material Adverse Effect. No tenant under any of the
leases, pursuant to which the Company or any Property Partnership, as
lessor, leases its SDG Property, has an option or right of first
refusal to purchase the premises demised under such lease, the exercise
of which would have a Material Adverse Effect. Each of the SDG
Properties complies with all applicable codes, laws and regulations
(including, without limitation, building and zoning codes, laws and
regulations and laws relating to access to the SDG Properties), except
for such failures to comply that would not in the aggregate have a
Material Adverse Effect. The Company does not have knowledge of any
pending or threatened condemnation proceeding, zoning change, or other
proceeding or action that will in any manner affect the size of, use
of, improvements on, construction on or access to, the SDG Properties,
except such proceedings, changes or actions that would not have a
Material Adverse Effect.
(xxii) Except as otherwise disclosed in the 1934 Act Documents and
except such violations as would not, singly or in the aggregate, result
in a Material Adverse Effect, (A) neither the Company, any of the other
Xxxxx XxXxxxxxx Entities nor any Property Partnership is in violation
of any federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law and any judicial or
administrative interpretation thereof including any judicial or
administrative order, consent, decree of judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Company, the
other Xxxxx XxXxxxxxx Entities and the Property Partnerships have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company, any of the other
Xxxxx XxXxxxxxx Entities or the Property Partnerships and (D) there are
no events or circumstances that
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might reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private party
or governmental body or agency, against or affecting the Company, any
of the other Xxxxx XxXxxxxxx Entities or any Property Partnership
relating to any Hazardous Materials or the violation of any
Environmental Laws.
References in the foregoing representations and warranties to the 1934
Act Documents shall be deemed to refer to the Registration Statement (as defined
in Section 3(b) below) and Prospectus (as defined in Section 3(b) below), in
each case including the documents incorporated by reference therein, if such are
required pursuant to Section 3(e) hereof.
(b) 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 organization" (as defined by the Commission for
purposes of Rule 436(g)(2) under the 0000 Xxx) 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, or (ii) the
occurrence at any time of any event set forth in Section 8(b) of this Agreement.
(b) The Company will furnish to the Remarketing Dealer:
(i) if required as provided in paragraph (e) below for purposes of
the remarketing, a then currently effective registration statement
under the 1933 Act and a then current prospectus relating to the MOPPRS
to be used by the Remarketing Dealer for remarketing and resale of the
MOPPRS (such registration statement (whether consisting of the
registration statement relating to the Exchange Offer MOPPRS or the
Shelf MOPPRS or, in each case, any amendment thereto or a new
registration statement) and any amendments thereto, including any such
prospectus (whether consisting of the prospectus relating to the
Exchange Offer MOPPRS or the Shelf MOPPRS or, in each case, any
amendment or
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supplement thereto or a new prospectus) relating to the MOPPRS
constituting a part thereof, and all documents incorporated therein by
reference, as from time to time amended or supplemented pursuant to the
1934 Act, the 1933 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 becomes effective, 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);
(ii) each 1934 Act Document filed after the date hereof for so
long as this Agreement shall remain in effect; and
(iii) in connection with the remarketing of MOPPRS, such other
information as the Remarketing Dealer may reasonably request from time
to time.
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 which the Remarketing Dealer would be
obligated to take any action under this Agreement, 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 (b) 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 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
(e) The Company will comply with the 1933 Act and the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the
rules and regulations of the Commission thereunder so as to permit the
completion of the remarketing of the MOPPRS, as contemplated in this Agreement
and in the Offering Memorandum. In furtherance of the foregoing, if it shall be
necessary, in the opinion of counsel for the Remarketing Dealer or for the
13
Company, to have a Registration Statement and a Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations and the
Commission's interpretations of the 1933 Act and the 1933 Act Regulations, or if
at any time when a Prospectus is required by the 1933 Act to be delivered in
connection with remarketing and resales 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, the Company, at its expense, will promptly (i) prepare and file with
the Commission such Registration Statement and Prospectus, or such amendment or
supplement as may be necessary to correct such statement or omission as referred
to above or to make the Registration Statement or the Prospectus comply with
such requirements as referred to above, (ii) furnish to the Remarketing Dealer
such number of copies of such Registration Statement and Prospectus or 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 satisfactory to the Remarketing Dealer, of the same tenor
as the officers' certificate, opinion and comfort letter, respectively,
delivered pursuant to the Purchase Agreement, but modified to relate to the
Registration Statement and Prospectus as amended or supplemented to the date
thereof.
(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, without the prior written consent of the
Remarketing Dealer. If the Remarketing Dealer, in its sole discretion, elects to
give its consent to any request of the Company pursuant to this Section 3(f),
the Remarketing Dealer will have rights set forth in Section 11(e).
(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.
14
(h) To the extent that a Registration Statement and a Prospectus are
required as contemplated in paragraph (e) above, the Company will comply with
covenants of the same tenor as those set forth in the Purchase Agreement, but
modified to relate to the Registration Statement and Prospectus.
Section 4. Appointment and Obligations of the Remarketing Dealer. (a)
Unless this Agreement is otherwise terminated in accordance with Section 11
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 Remarketing Dealer with respect to
$200,000,000 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 Purchase
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 that (i) any of
the conditions set forth in clause (a) of Section 8 hereof shall not have been
fully and completely met to the satisfaction of the Remarketing Dealer, or (ii)
any of the events set forth in clause (b) of Section 8 hereof shall have
occurred.
(c) On a Business Day not later than five Business Days prior to the
Remarketing Date, the Remarketing Dealer shall 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.
(c) 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 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 5.649% (the "Base Rate") plus the Applicable Spread (as
defined below), which will be based on the Dollar Price (as defined below) of
the MOPPRS.
15
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 a purchase price equal to 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 equal to
the Stated Maturity Date of the MOPPRS, and (iii) a stated annual interest rate,
payable semiannually on each Interest Payment Date for the MOPPRS, equal to 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.
"Dollar Price" means, with respect to the MOPPRS, the present value
determined by the Remarketing Dealer, as of the Remarketing Date, of the
Remaining Scheduled Payments (as defined below) discounted to the Remarketing
Date, on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months), at the Treasury Rate (as defined below).
"Reference Corporate Dealers" means leading dealers of publicly traded
debt securities of the Company in The City of New York (which may include the
Remarketing Dealer or one of its affiliates, but not both the Remarketing Dealer
and one of its affiliates) selected by the Remarketing Dealer and reasonably
acceptable to the Company.
"Treasury Rate" means, with respect to the Determination 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 Determination Date.
"Comparable Treasury Issues" means the United States Treasury security
or securities selected by the Remarketing Dealer as having an actual or
interpolated remaining maturity or maturities of 30 years.
"Comparable Treasury Price" means, with respect to the Determination
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
16
Dealer Quotations for the Determination 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 to the Remarketing Dealer by such Reference Treasury
Dealer by 3:30 p.m., New York City time, 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 (or their respective affiliates which are
primary U.S. Government securities dealers) 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.
"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, as determined by the Remarketing
Dealer.
(d) 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.
(e) 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.
17
(f) Subject to Section 11(c) of this Agreement, 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) the Remarketing Dealer has terminated this Agreement pursuant to Section 8
or Section 11 hereof at any time after the Remarketing Dealer elects on the
Notification Date to remarket the MOPPRS, 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.
(g) 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
Dollar Price, 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.
(h) 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.
(ii) 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 8(b)(viii) of this
Agreement, to the extent required to facilitate the tender and
remarketing of MOPPRS in
18
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 11 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 11(b) hereof. It shall
be the sole responsibility of the Company to appoint a successor Remarketing
Dealer if it desires to do so.
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. 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 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, and (b) the further condition that none
of the following events shall have occurred at any time:
(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
19
List with negative implications, or withdrawn by a nationally
recognized statistical rating organization;
(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 reasonable 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 or SDG 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 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 or inadvisable 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;
20
(vii) if a Prospectus is required under the 1933 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;
(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; or
(ix) not later than 10 Business Days prior to the Remarketing Date
(such tenth Business Day prior to the Remarketing Date, the
"Transferability Determination Date"), (A) less than 100% of the
aggregate principal amount of the Original MOPPRS have been exchanged
for Exchange Offer MOPPRS or otherwise registered pursuant to a shelf
registration statement, in each case as contemplated by the
Registration Rights Agreement and (B) as to any Original MOPPRS not so
exchanged or otherwise registered, the Company has not provided to the
Remarketing Dealer an opinion of counsel reasonably satisfactory to the
Remarketing Dealer to the effect that such MOPPRS are not "restricted
securities" within the meaning of the 1933 Act Regulations;
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
(b) has occurred.
(c) 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 and of the chief
21
financial officer 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 or
redetermine the Interest Rate to Maturity as provided in Section 11.
Section 9. 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 1934 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 1933 Act relating to the
MOPPRS, if required, or the failure to satisfy the prospectus delivery
requirements of the 1933 Act because the Company failed to provide the
Remarketing Dealer with a Prospectus for delivery, 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
that are finally judicially determined to be due to its gross
negligence or willful misconduct;
(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
22
(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 1934 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 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
23
or threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 9 or Section 10 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 9 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 10. Contribution. If the indemnification provided for in
Section 9 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 at which the
24
MOPPRS are sold by the Remarketing Dealer in the remarketing and the price paid
by the Remarketing Dealer for the MOPPRS tendered on the Remarketing Date.
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 10 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 10. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 10 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 10, 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 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 10, each person, if any, who controls the
Remarketing Dealer within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 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
25
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company.
Section 11. 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.
(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
8(a) hereof have not been met or satisfied in full, (ii) any of the events set
forth in Section 8(b) shall have occurred at any time or (iii) the Remarketing
Dealer determines, in its sole discretion, 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) Notwithstanding any provision herein to the contrary, in lieu of
terminating this Agreement pursuant to Section 11(b) above, upon the occurrence
of any of the events set forth therein, the Remarketing Dealer, in its sole
discretion at any time between the Determination Date and 3:30 p.m., New York
City time, on the Business Day immediately preceding the Remarketing Date, may
elect to purchase the MOPPRS for remarketing and determine a new Interest Rate
to Maturity in the manner provided in Section 4(d) of this Agreement, except
that for purposes of determining the new Interest Rate to Maturity pursuant to
this paragraph the Determination Date referred to therein shall be the date of
such election and redetermination. 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 date of such election, of the new Interest Rate to Maturity
applicable to the MOPPRS. Thereupon, such new Interest Rate to Maturity shall
supersede and replace any Interest Rate to Maturity previously determined by the
Remarketing Dealer and, absent manifest error, shall be binding and conclusive
upon the Beneficial Owners and Holders of the MOPPRS on or after the Remarketing
Date, the Company and the Trustee; provided, however, that the Remarketing
Dealer, by redetermining the Interest Rate to Maturity upon the occurrence of
any event set forth in Section 11(b) as set forth above, shall not thereby be
deemed to have waived its right to determine a new Interest Rate to Maturity or
terminate this Agreement upon the occurrence of any other event set forth in
Section 11(b).
26
(d) 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 11(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 11(e) below.
Sections 1, 9, 10, 11(d) and 11(e) shall survive such termination and remain in
full force and effect.
(e) In the case of either (i) termination of this Agreement after the
Remarketing Dealer's election on the Notification Date to remarket the MOPPRS
pursuant to Section 11(b) (but with respect to events or circumstances giving
rise to such right of termination that occur or arise prior to the Remarketing
Dealer's election on the Notification Date to remarket the MOPPRS, only if, in
the judgment of the Remarketing Dealer, the effect thereof is to make it illegal
or impracticable for the Remarketing Dealer to remarket the MOPPRS) 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 8(b)(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 11(b)
after the Remarketing Dealer elects on the Notification Date to remarket the
MOPPRS, the Call Price shall be equal to the excess of (i) the Dollar Price of
the MOPPRS determined as provided in Section 4 over (ii) the aggregate principal
amount of the MOPPRS.
In the case of 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 8(b)(ii), (v) or (viii), the Call
Price shall be determined in good faith by the Remarketing Dealer on a
commercially reasonable basis by reference to, among other factors, the
formulation set forth in the preceding paragraph.
The Remarketing Dealer shall determine the applicable Call Price on the
Business Day immediately following the date of termination or notification 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 8(b)(ii), (v) or
(viii), as the case may be, or as soon as practicable thereafter (the "Call
Price Determination Date"). The Remarketing Dealer shall promptly notify the
Company of the Call Price Determination Date and the Call Price by telephone,
confirmed in writing (which
27
may include facsimile or other electronic transmission). The Call Price, absent
manifest error, shall be binding and conclusive upon the parties hereto.
Notwithstanding the foregoing, in the case of the failure of the
conditions set forth in Section 8(b)(ix), then at any time after the
Transferability Determination Date, the Remarketing Dealer in its sole
discretion may either terminate this Agreement and receive payment of the Call
Price in full, calculated as provided in the second paragraph of this Section
11(e) and payable as provided in the immediately preceding paragraph, or, in
lieu thereof, elect to (i) not terminate this Agreement, (ii) receive a pro rata
portion (as determined in good faith by the Remarketing Dealer) of the Call
Price, calculated as provided in the second paragraph of this Section 11(e) and
payable as provided in the immediately preceding paragraph, based on the
aggregate principal amount of the MOPPRS as to which the requisite opinion has
not been delivered and (iii) retain its right to elect to remarket as provided
herein the balance of the principal amount of MOPPRS outstanding.
If the Company seeks to redeem all or any portion of the MOPPRS prior
to the Remarketing Date, and the Remarketing Dealer, in its sole discretion in
accordance with Section 3(f), gives its consent to all or any portion of the
MOPPRS being so redeemed, the Remarketing Dealer in its sole discretion may, as
a condition to the granting of such consent, either (i) require this Agreement
to be terminated and the Call Price paid in full (the amount of such Call Price
to be determined in good faith by the Remarketing Dealer and to be calculated
and payable as provided in the third full paragraph of this Section 11(e)), or
(ii) in lieu thereof, elect to (x) not terminate this Agreement, (y) receive a
pro rata portion of the Call Price as determined in good faith by the
Remarketing Dealer, calculated and payable as provided in the third full
paragraph of this Section 11(e), based on the aggregate principal amount of the
MOPPRS repurchased or subject to repurchase and (z) retain its right to elect to
remarket as provided herein the portion of the MOPPRS remaining outstanding.
(f) This Agreement shall not be subject to termination by the Company.
Section 12. Remarketing Dealer's 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 hereunder to any Beneficial Owner or Holder of MOPPRS in its
individual capacity or as
28
Remarketing Dealer for any action or failure to act in connection with the
remarketing or otherwise. The Remarketing Dealer shall incur no liability to the
Company with respect to calculation of the Interest Rate to Maturity, except as
a result of gross negligence or willful misconduct on its part.
Section 13. 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 14. 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 9, 10 and
11 hereof shall remain operative and in full force and effect until fully
satisfied.
Section 15. 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 hereunder may be assigned or delegated to any
successor corporation under the Indenture with the prior written consent of the
Remarketing Dealer which consent shall not be unreasonably withheld. 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 1933 Act or Section 20 of the 1934 Act,
or any indemnified party to the extent provided in Section 9 hereof, or any
person entitled to contribution to the extent provided in Section 10 hereof. The
terms "successors" and "assigns" shall not include any purchaser of any MOPPRS
merely because of such purchase.
Section 16. 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 17. 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
29
jurisdiction, or of rendering any other provision or provisions of this
Agreement invalid, inoperative or unenforceable to any extent whatsoever.
Section 18. 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 19. 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 20. 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:
Xxxxx XxXxxxxxx Group, L.P.
National City Center
000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
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: Swaps Option Desk
Facsimile No.: (000) 000-0000
With a copy to: Xxxxx Xxxxxxxx/Transaction Management
Group
Facsimile No.: (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.
XXXXX XXXXXXXXX GROUP, L.P.
By: SD Property Group, Inc.
Managing General Partner
By
-------------------------------
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By
-------------------------------
Authorized Signatory
