, February 9, 2000 (this "AGREEMENT"),
among (i) The Titan Corporation, a Delaware corporation (the
"COMPANY"), (ii) Titan Capital Trust, a Delaware business trust
(the "TRUST"), (iii) Wilmington Trust Company, as Tender Agent
and (iv) Credit Suisse First Boston Corporation, a
Massachusetts corporation (together with its successors and
assigns, the "REMARKETING AGENT").
RECITALS
WHEREAS the Trust is a statutory business trust that has been created
under Delaware law and exists pursuant to the Trust Agreement (as defined below)
and a certificate of trust filed with the Delaware Secretary of State; and
WHEREAS the Trust is issuing on today's date or has heretofore issued
$200,000,000 (or up to $250,000,000 to the extent the over-allotment option is
exercised in full) aggregate Liquidation Amount (as defined below) of
Remarketable Term Income Deferrable Equity Securities (HIGH TIDES)K, liquidation
amount $50 per security (the "HIGH TIDES") representing preferred undivided
beneficial interests in the assets of the Trust and has used the proceeds of the
HIGH TIDES, together with the proceeds of $6,185,600 (or up to $7,732,000 to the
extent the over-allotment option is exercised in full) aggregate Liquidation
Amount of its Common Securities (as defined in the Trust Agreement) of the
Trust, to purchase $206,185,600 (or up to $257,732,000 to the extent the
over-allotment option is exercised in full) aggregate principal amount of
Convertible Senior Subordinated Debentures Due 2030 (the "DEBENTURES") issued by
the Company pursuant to the Indenture (as defined below);
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. (a) The following terms shall have the
meanings indicated below:
"ADDITIONAL AMOUNTS" has the meaning specified in the Indenture.
"ADMINISTRATIVE TRUSTEES" has the meaning specified in the definition
of Trust Agreement in this Section 1.
"BROKER-DEALER" has the meaning assigned to such term in Section 5.
"BROKER-DEALER AGREEMENT" means an agreement between the Remarketing
Agent and a Broker-Dealer.
"BUSINESS DAY" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed, or (c) a day on which the
Property Trustee's or Debenture
Trustee's Corporate Trust Office (as defined in the Trust Agreement with respect
to the Property Trustee and in the Indenture with respect to the Debenture
Trustee) is closed for business.
"CAUSE" means any one of the following events or circumstances shall
have occurred and be continuing: (i) the bankruptcy or insolvency of the
Remarketing Agent; or (ii) the Remarketing Agent shall cease to be registered as
a broker-dealer under the Exchange Act.
"CLOSING PRICE" means for any security on any day the last reported
sale price of the security on that day, or in case no sale takes place on that
day, the average of the closing bid and asked prices in each case on the
principal national securities exchange on which the securities are listed or
admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the National Market System of the National Association
of Securities Dealers, Inc. or any successor national automated interdealer
quotation system (the "NMS") or, if the securities are not listed or admitted to
trading on any national securities exchange or quoted on the NMS, the average of
the closing bid and asked prices of the security in the over-the-counter market
as furnished by any New York Stock Exchange member firm selected by the Company
for that purpose.
"COMMISSION" means the Securities and Exchange Commission or any
successor thereto.
"COMMON STOCK" has the meaning assigned to such term in the Indenture.
"COMPANY" has the meaning assigned to such term in the preamble to
this Agreement.
"COMPARABLE TREASURY ISSUE" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the Remaining
Life that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the Remaining Life. If no United States Treasury
security has a maturity which is within a period from three months before to
three months after the Reset Date, the two most closely corresponding United
States Treasury securities shall be used as the Comparable Treasury Issue, and
the rate being calculated shall be interpolated or extrapolated on a
straight-line basis, rounding to the nearest month using such securities.
"COMPARABLE TREASURY PRICE" means (A) the arithmetic mean of five
Reference Treasury Dealer Quotations, after excluding the highest and lowest
such Reference Treasury
2
Dealer Quotations, or (B) if the Quotation Agent obtains fewer than five such
Reference Treasury Dealer Quotations, the arithmetic mean of all such Reference
Treasury Dealer Quotations.
"CONVERTIBLE REMARKETING" has the meaning specified in Section 2(d).
"DEBENTURE TRUSTEE" means Wilmington Trust Company, as Trustee under
the Indenture (including its successors as Debenture Trustee thereunder).
"DEBENTURES" has the meaning assigned to such term in the recitals to
this Agreement.
"DECLARATION TRUSTEES" means collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.
"DISCLOSURE DOCUMENTS" means the Registration Statement, or if the
Registration Statement is not required to be filed with the Commission pursuant
to Section 2(b), the Nonregistered Offering Documents, including any preliminary
offering document or Preliminary Prospectus, as applicable, and as each may be
amended or supplemented.
"EFFECTIVE TIME" means the date and time as of which the Registration
Statement or its most recent post-effective amendment is declared effective by
the Commission.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time.
"FAILED FINAL REMARKETING" has the meaning specified in Section 2(d).
"FINAL REMARKETING" has the meaning specified in Section 2(d).
"FINAL REMARKETING PERIOD" means the period beginning on the Business
Day immediately following the Initial Remarketing Termination Date and ending on
the day which is ten (10) Business Days (or such shorter period as shall be
agreed to by the Remarketing Agent) after the Initial Remarketing Termination
Date.
"FINAL RESET DATE" means February 15, 2005.
"GLOBAL SECURITY CERTIFICATE" has the meaning assigned to (i) the term
"Global Preferred Securities" in the Trust Agreement if the Subject Securities
are HIGH TIDES or (ii) the term "Global Security" in the Indenture if the
Subject Securities are Debentures.
"HIGH TIDES" has the meaning assigned to such term in the recitals to
this Agreement.
3
"INDENTURE" means the Indenture, dated as of February 9, 2000, between
the Company and the Debenture Trustee, as such indenture may from time to time
be amended, modified or supplemented.
"INITIAL FAILED REMARKETING" has the meaning specified in Section
2(d).
"INITIAL REMARKETING" has the meaning specified in Section 2(d).
"INITIAL REMARKETING PERIOD" means the period beginning on the first
Business Day immediately following the Tender Notification Date and ending on
the day which is ten (10) Business Days (or such shorter period as shall be
agreed to by the Remarketing Agent) after the Tender Notification Date.
"INITIAL REMARKETING TERMINATION DATE" means the tenth (10) Business
Day following the Tender Notification Date (or such shorter period as shall be
agreed to by the Remarketing Agent).
"INTEREST" means all quarterly payments, interest (to the extent
permitted by applicable law) on quarterly payments not paid on the applicable
Interest Payment Date and Additional Amounts, as applicable.
"INTEREST PAYMENT DATE" has the meaning specified in the Indenture and
the Trust Agreement.
"LIQUIDATION AMOUNT" means, with respect to a HIGH TIDES or Common
Security, its stated liquidation amount of $50.
"MARKET EVENT" means the occurrence of (i) a change in U.S. or
international financial, political or economic conditions or currency exchange
rates or exchange controls as would, in the sole judgment of the Remarketing
Agent, be likely to prejudice materially the success of the Remarketing, issue,
sale or distribution of the Subject Securities, or (ii) (A) any change, or any
development or event involving a prospective change, in the condition (financial
or other), business, properties or results of operations of the Company or its
subsidiaries which, in the sole judgment of the Remarketing Agent, is material
and adverse and makes it impractical or inadvisable to proceed with completion
of the Remarketing or the sale of and payment for the Subject Securities; (B)
any downgrading in the rating of the Subject Securities or any other debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities Act),
or any public announcement that any such organization has under surveillance or
review its rating of the Subject Securities or any other debt securities of the
Company (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating); (C)
any suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of the Company on any exchange or
in the over-the-counter market; (D) any banking
4
moratorium declared by U.S. Federal or New York authorities; or (E) any outbreak
or escalation of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the sole judgment of the Remarketing
Agent, the effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with completion of the
Remarketing or the sale of and payment for the Subject Securities.
"MAXIMUM RATE" means a rate per annum equal to the Treasury Rate plus
10%.
"NO REGISTRATION OPINION" means an opinion of Securities Counsel that
the securities issuable in the Remarketing do not need to be registered under
the Securities Act and that no other filing of any kind is required to be made
with the Commission as a condition to the sale of such securities, which No
Registration Opinion shall be reasonably satisfactory to the Remarketing Agent
and its counsel.
"NONCONVERTIBLE REMARKETING" has the meaning specified in Section
2(d).
"NONREGISTERED OFFERING DOCUMENTS" has the meaning specified in
Section 6(a).
"NOTICE OF PURCHASERS" means a notice delivered by the Remarketing
Agent on the Reset Date to (i) the Tender Agent if the Subject Securities are
not evidenced by a Global Security Certificate on the Reset Date or (ii) The
Depository Trust Company if the Subject Securities are evidenced by a Global
Security Certificate on the Reset Date, in either case naming the parties who
will purchase the Subject Securities from the Remarketing Agent.
"OFFERING CIRCULAR" means the confidential offering circular, dated as
of February 3, 2000, relating to the issuance by the Trust of the HIGH TIDES.
"PAR AMOUNT" means $50 per Subject Security.
"PAYING AGENT" has the meaning specified in the Trust Agreement.
"PRELIMINARY PROSPECTUS" means each prospectus included in the
Registration Statement, or amendment thereof, before it becomes effective under
the Securities Act and any prospectus which may be filed by the Company with the
Commission pursuant to Rule 424(a) (or any successor applicable rule) of the
rules and regulations under the Securities Act (the "RULES AND REGULATIONS") in
connection with the Registration Statement.
"PRIMARY TREASURY DEALER" has the meaning specified in the definition
of Quotation Agent in this Section 1.
"PROPERTY TRUSTEE" has the meaning specified in the definition of
Trust Agreement in this Section 1.
5
"PROSPECTUS" means the final prospectus which will be filed with the
Commission pursuant to Rule 424(b) (or any successor applicable rule) of the
Rules and Regulations and deemed to be a part of the Registration Statement at
the time of its effectiveness under the Securities Act pursuant to paragraph (b)
of Rule 430A (or any successor applicable rule) of the Rules and Regulations.
"QUOTATION AGENT" means Credit Suisse First Boston Corporation and its
successors; PROVIDED, HOWEVER, that if Credit Suisse First Boston Corporation or
its successors shall cease to be a primary United States Government securities
dealer in The City of New York (a "PRIMARY TREASURY DEALER"), the Company shall
substitute therefor another Primary Treasury Dealer.
"REFERENCE TREASURY DEALER" means (i) the Quotation Agent and (ii) any
other Primary Treasury Dealer selected by the Debenture Trustee after
consultation with the Company.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer, the arithmetic mean, as determined by the Debenture
Trustee of the bid and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) quoted in writing to the
Debenture Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day preceding the Reset Date.
"REGISTRATION STATEMENT" means a registration statement covering the
securities to be issued in the Remarketing filed with the Commission pursuant to
the Securities Act, including any amendments thereto and any document or other
information incorporated by reference therein.
"REMAINING LIFE" means the period beginning on (and including) the
Reset Date and ending on February 15, 2030.
"REMARKETING" means the remarketing of all HIGH TIDES tendered as set
forth herein.
"REMARKETING AGENT" has the meaning assigned to such term in the
preamble to this Agreement (including any successor Remarketing Agent).
"REMARKETING CONDITIONS" means the following factors: (i) short-term
and long-term market rates and indices of such short-term and long-term rates,
(ii) market supply and demand for short-term and long-term securities, (iii)
yield curves for short-term and long-term securities comparable to the Subject
Securities, (iv) industry and financial conditions which may affect the Subject
Securities, (v) the number of Subject Securities to be remarketed, (vi) the
number of potential purchasers, (vii) the current ratings by nationally
recognized statistical rating organizations of long-term subordinated debt of
the Company and of other outstanding capital securities of the Company's trust
subsidiaries, (viii) the number of shares of Common Stock, if
6
any, into which the Subject Securities will be convertible and (ix) the length
and type of call protections, if any.
"REMARKETING NOTICE" has the meaning specified in Section 2(d).
"RESET DATE" means any date (1) not later than February 15, 2005 (the
Final Reset Date) or, if such date is not a Business Day, the next succeeding
Business Day and (2) not earlier than 70 Business Days prior to February 15,
2005, as may be determined by the Remarketing Agent, in its sole discretion.
"RULES AND REGULATIONS" has the meaning specified in the definition of
Preliminary Prospectus in this Section 1.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time.
"SECURITIES COUNSEL" means counsel experienced in matters relating to
securities law.
"SUBJECT SECURITIES" means (i) the HIGH TIDES if, on the Reset Date,
the Debentures have not been distributed to holders of HIGH TIDES in connection
with a liquidation or dissolution of the Trust or (ii) otherwise, the
Debentures.
"TENDER AGENT" means (i) the Property Trustee if the Subject
Securities are HIGH TIDES or (ii) the Debenture Trustee if the Subject
Securities are Debentures.
"TENDER NOTIFICATION DATE" means a Business Day no earlier than ten
(10) Business Days following the date of the Remarketing Notice (or such shorter
period as shall be agreed to by the Remarketing Agent).
"TERM CALL PROTECTIONS" has the meaning assigned to such term in
Section 2(c).
"TERM CONVERSION PRICE" has the meaning assigned to such term in
Section 2(c).
"TERM CONVERSION RATIO" has the meaning assigned to such term in
Section 2(c).
"TERM PROVISIONS" has the meaning specified in Section 2(c).
"TERM RATE" has the meaning assigned to such term in Section 2(c).
"TREASURY RATE" means (i) the yield, under the heading which
represents the average for the week immediately prior to the date of
calculation, appearing in the most recently published statistical release
designated H.15(519) or any successor publication which is published weekly by
the Federal Reserve and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the caption
"Treasury Constant Maturities," for the maturity corresponding to the Remaining
Life (if no maturity is within three
7
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be determined
and the Treasury Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding to the nearest month) or (ii) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semiannual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
the Reset Date. The Treasury Rate shall be calculated by the Remarketing Agent
on the third Business Day preceding the Reset Date.
"TRUST" has the meaning assigned to such term in the preamble to this
Agreement.
"TRUST AGREEMENT" means the Amended and Restated Declaration of Trust,
dated as of February 15, 2000, among the Company, as Depositor, Wilmington Trust
Company, as Property Trustee (the "PROPERTY TRUSTEE"), Wilmington Trust Company,
as Delaware Trustee (the "DELAWARE TRUSTEE"), Xxxxxx Xxx Xxxxxxxx and Xxx
Xxxxxxxxx (the "ADMINISTRATIVE TRUSTEES") and the holders from time to time of
undivided beneficial interests in the assets of the Trust, as such agreement may
from time to time be amended, modified or supplemented.
(b) Capitalized terms used herein and not otherwise defined but
defined in the Trust Agreement or Indenture shall have the meanings assigned to
such terms in the Trust Agreement or the Indenture, as applicable.
SECTION 2. ACCEPTANCE AND PERFORMANCE OF DUTIES. The Remarketing
Agent, the Company, the Trust and the Tender Agent agree as follows:
(a) The Remarketing Agent will perform the duties and obligations of
Remarketing Agent for the remarketed securities as specified in the Trust
Agreement (if the tendered securities are the HIGH TIDES), the Indenture (if the
tendered securities are the Debentures) and in this Agreement in good faith and
in compliance with the provisions of applicable laws.
(b) The Remarketing Agent will use its best efforts to remarket all
Subject Securities tendered or deemed tendered for sale; PROVIDED, HOWEVER, that
the Remarketing Agent will not be obligated to attempt to remarket such Subject
Securities, or to determine the Term Rate pursuant to Section 2(c) below, if (A)
in the Remarketing Agent's judgment any (i) Disclosure Document provided by the
Trust or the Company in connection with the Remarketing or (ii) document
publicly disclosed (including in a filing pursuant to the Exchange Act) by or on
behalf of the Trust or the Company, includes any untrue statement of a material
fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, unless the Remarketing Agent is satisfied in its sole discretion
that such statement or omission has been properly corrected, (B) unless the
Company provides a No Registration Opinion to the Remarketing Agent prior to the
Tender Notification Date, the Company and the Trust (if applicable) shall have
failed to have the
8
Registration Statement declared effective by the Commission on or prior to the
Tender Notification Date and remain effective at least through and including the
Reset Date, PROVIDED that the Registration Statement may be declared effective
later than the Tender Notification Date if the Company provides an opinion of
Securities Counsel to the Remarketing Agent to the effect that such Registration
Statement need not become effective until the date the Initial Remarketing
Period is required to commence and the Remarketing Agent consents to such delay
or (C) the Company fails to comply with the requirements set forth in Section
6(c) of this Agreement. The Remarketing Agent may, but except as provided in
Section 11 shall not be obligated to, purchase tendered Subject Securities for
its own account.
(c) The Remarketing Agent has agreed to use its best efforts to
remarket all Subject Securities tendered as set forth herein for Remarketing on
the Tender Notification Date. The Remarketing Agent will establish, effective
beginning on the Reset Date, (i) the rate (the "TERM RATE") per annum at which
Interest will accrue on the Subject Securities, (ii) the term conversion ratio
and price, which determine the number of shares of Common Stock, if any, into
which each Subject Security may be converted (respectively, the "TERM CONVERSION
RATIO" and the "TERM CONVERSION PRICE") and (iii) the price, manner and time, if
any, at which the Subject Securities may be redeemed (the "TERM CALL
PROTECTIONS" and together with the Term Rate, Term Conversion Ratio and Term
Conversion Price, the "TERM PROVISIONS"). The Remarketing Agent will use its
best efforts to establish the Term Provisions most favorable to the Company
consistent with the successful remarketing of Subject Securities tendered as set
forth herein therefor at a price equal to 101% of the aggregate Par Amount
thereof; PROVIDED that each Subject Security will have the same Term Provisions;
PROVIDED that the Term Provisions may not permit the Company to redeem the
Subject Securities for a price less than the aggregate Par Amount thereof plus
any accrued and unpaid Interest thereon; and, PROVIDED FURTHER, that if no
Subject Security is tendered as set forth herein for remarketing on the Tender
Notification Date, the Remarketing will not take place (although the Remarketing
will not be deemed to have failed), and the Remarketing Agent will set the Term
Provisions in a manner consistent with the Remarketing Notice that it believes,
in its sole discretion, would result in a price per Subject Security equal to
101% of its Par Amount were the Remarketing actually to occur.
(d) The remarketing process will commence on the first Business Day
following the Tender Notification Date and will be conducted on the following
schedule and in the following manner:
At Least 30 Business Days, But
Not More Than 90 Business Days
Prior to the Final Reset Date:
The Trust shall cause a notice (the "REMARKETING NOTICE") to be sent to holders
of the Subject Securities stating whether it intends to remarket the Subject
Securities as securities which will be convertible into Common Stock of the
Company (a "CONVERTIBLE REMARKETING") or which will be nonconvertible (a
"NONCONVERTIBLE REMARKETING").
The date of the Remarketing Each outstanding Subject Security shall be
Notice through the Tender deemed to have been tendered for
Notification Date: remarketing unless the holder thereof has
9
10
given irrevocable notice to the contrary
to the Tender Agent (which the Tender
Agent will promptly remit to the
Remarketing Agent). Such irrevocable
notice, which may be telephonic or
written, must be delivered prior to 5:00
p.m., New York City time, on the Tender
Notification Date. A holder's notice of an
election to retain Subject Securities must
state the number of Subject Securities to
be retained (which must be all of the
Subject Securities represented by the
applicable certificate, unless such
certificate is a Global Security
Certificate), the number of the
certificate representing the Subject
Securities not to be deemed to have been
so tendered (unless such certificate is a
Global Security Certificate) and the
number of Subject Securities represented
by such certificate (unless such
certificate is a Global Security
Certificate). Any transferee of a Subject
Security for which such notice has been
provided shall be bound thereby. The
failure by a holder of Subject Securities
to give timely notice of an election to
retain all (or, in the case of a Global
Security Certificate, any part) of such
holder's Subject Securities will
constitute the irrevocable tender for sale
in the Remarketing of all the Subject
Securities it holds. A holder of Subject
Securities which has not duly given notice
that it will not tender and retain its
Subject Securities will cease to have any
further rights with respect to such
Subject Securities upon the successful
remarketing thereof, except the right of
such holder to receive an amount equal to
(i) from the proceeds of the Remarketing,
101% of the aggregate Par Amount thereof,
plus (ii) from the Company, any accrued
and unpaid Interest thereon to (but
excluding) the Reset Date.
If any Subject Securities are
11
tendered for remarketing, the
Remarketing Agent will commence a
Convertible Remarketing or a
Nonconvertible Remarketing, as the
case may be (in either case, an
"INITIAL REMARKETING"), in
accordance with the terms of this
Agreement and pursuant to the
instructions set forth in the
Remarketing Notice. The
Remarketing Agent will determine,
and upon request make available to
interested persons, nonbinding
indications of, the Term Provisions
based upon then-current Remarketing
Conditions. The Remarketing Agent
will solicit and receive orders
from prospective investors to
purchase tendered Subject
Securities. The Initial
Remarketing shall be deemed to have
failed (an "INITIAL FAILED
REMARKETING") if (i) despite using
its best efforts, the Remarketing
Agent is unable to establish, prior
to the Initial Remarketing
Termination Date, a Term Rate which
is less than or equal to the
Maximum Rate, (ii) the Remarketing
Agent is excused from Remarketing
the Subject Securities because of
(a) the failure by the Company or
the Trust to satisfy a condition in
this Agreement or (b) the
occurrence of a Market Event, (iii)
there is no Remarketing Agent on
the first day of the Initial
Remarketing Period or (iv) prior to
the Initial Remarketing Termination
Date, Term Provisions are
established by the Remarketing
Agent, but the Remarketing Agent,
despite
12
using its best efforts, is unable to
consummate the sale of one or more
Subject Securities tendered for
remarketing because of the occurrence
of a Market Event.
Remainder of the Initial Remarketing The Remarketing Agent will continue,
Period: if necessary, using its best efforts
to remarket the Subject Securities
tendered for remarketing as described
above, adjusting the non-binding
indications of the Term Provisions
necessary to establish the Term
Provisions most favorable to the
Company consistent with remarketing
all Subject Securities tendered
therefor at 101% of the Par Amount,
until the Initial Remarketing is
completed or is deemed to have failed.
See the definition of an Initial
Failed Remarketing above. Promptly
upon determination of the Term
Provisions, the Remarketing Agent will
communicate such Term Provisions to
the Tender Agent, which will
communicate such Term Provisions to
the Declaration Trustees (if the Trust
has not dissolved), the Trust (if the
Trust has not dissolved), the
Debenture Trustee, the Paying Agent,
the Company and each holder (if any)
which timely elected not to tender all
of its Subject Securities for
remarketing, by delivery of a written
notice or by telephone promptly
confirmed by telecopy or writing.
Beginning the First Business Day If, prior to the Initial Remarketing
Following an Initial Failed Termination Date, the Initial
Remarketing (if applicable): Remarketing fails because the
Remarketing Agent was not able to
establish a Term Rate less than or
equal to the Maximum Rate or prior to
such Initial Termination Date, Term
Provisions are established by the
Remarketing Agent but the Remarketing
Agent, despite using its best efforts,
is unable to consummate the sale of one
or more Subject Securities tendered for
13
remarketing because of the occurrence
of a Market Event, the Remarketing
Agent will commence a second
remarketing (the "FINAL REMARKETING"),
which will be a Convertible Remarketing
if the Initial Remarketing was a
Nonconvertible Remarketing and a
Nonconvertible Remarketing if the
Initial Remarketing was a Convertible
Remarketing. The Remarketing Agent
will determine, and upon request make
available to interested persons,
nonbinding indications of, the Term
Provisions based upon then-current
Remarketing Conditions. The
Remarketing Agent will solicit and
receive orders from prospective
investors to purchase tendered Subject
Securities. The Final Remarketing will
be deemed to have failed (a "FAILED
FINAL REMARKETING") if (i) despite
using its best efforts, the Remarketing
Agent is still not able to establish a
Term Rate less than or equal to the
Maximum Rate prior to the expiration of
the Final Remarketing Period, (ii) the
Remarketing Agent is excused from
Remarketing the Subject Securities
because of (a) the failure by the
Company or the Trust to satisfy a
condition in this Agreement or (b) the
occurrence of a Market Event, or (iii)
prior to the termination date for the
Final Remarketing Period, Term
Provisions are established by the
Remarketing Agent but the Remarketing
Agent, despite using its best efforts,
is unable to consummate the sale of one
or more Subject Securities tendered for
remarketing because of the occurrence
of a Market Event.
The Remarketing Agent will Reset Date:
continue, if necessary, to use its
best efforts to remarket the
Subject Securities, as described
above, adjusting the non-binding
indications of the Term
14
Provisions as necessary to
establish the Term Provisions
most favorable to the Company
consistent with remarketing
all Subject Securities
tendered therefor at 101% of the
Par Amount until the Final
Remarketing is completed or is
deemed to have failed. See the
definition of a Failed Final
Remarketing above. If the
Remarketing Agent is able to
establish a Term Rate less than or
equal to the Maximum Rate during
the Final Remarketing Period, it
will promptly communicate such
Term Provisions to the Tender
Agent, which will communicate such
Term Provisions to the Declaration
Trustees (if the Trust has not
dissolved), the Trust (if the
Trust has not dissolved), the
Debenture Trustee, the Paying
Agent, the Company and each holder
(if any) which timely elected not
to tender all of its Subject
Securities for remarketing, by
delivery of a written notice or by
telephone promptly confirmed by
telecopy or writing.
New holders must deliver the
purchase price for the remarketed
securities in same-day funds to the
Remarketing Agent and the
Remarketing Agent will deliver such
purchase price to the Tender Agent
(in like funds). Settlement of
transactions in connection with the
remarketing will take place on the
Reset Date, or such date as the
Remarketing Agent may, in its
15
sole discretion, determine, or, as
otherwise required by applicable
law. Payments to tendering holders
who hold Subject Securities in the
form of one or more Global Security
Certificates will be made in the
manner provided in the Offering
Circular under "Description of HIGH
TIDES-Depositary Procedures."
Tendering holders who hold Subject
Securities in certificated form
(other than in the form of Global
Security Certificates) must deliver
their certificates properly
endorsed for transfer to the Tender
Agent by 2:30 p.m., New York City
time on the Reset Date (or any
succeeding date) to receive payment
of the purchase price for their
Subject Securities. Subject to
compliance with the preceding two
sentences, the Tender Agent will
pay former holders the proceeds of
the Remarketing of their Subject
Securities by the Remarketing
Agent. In the event of a Failed
Final Remarketing, the Term Rate
shall be a rate equal to the
Treasury Rate plus 10% per annum.
The Term Conversion Price will be
equal to 105% of the average
Closing Price of the Company's
Common Stock for the five (5)
consecutive trading days after the
Final Remarketing Period. In the
event of a Failed Final
Remarketing, all outstanding
Subject Securities will be
redeemable by the Company, in whole
or in part, at any time on or after
the third anniversary of the Reset
Date at a
16
redemption price equal to
100% of the aggregate Par Amount
thereof, plus accrued and unpaid
interest thereon. On and after the
Reset Date, the terms of all
Subject Securities, whether or not
tendered for remarketing, will be
modified by the Term Provisions, as
the same shall be established by
the Remarketing Agent. If the
Subject Securities are not held by
The Depository Trust Company or its
nominee in the form of one or more
Global Security Certificates,
certificates representing
remarketed Subject Securities will
be issued to the purchasers thereof,
irrespective of whether the
certificates formerly representing
such Subject Securities have been
delivered to the Tender Agent.
SECTION 3. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF
THE COMPANY AND THE REMARKETING AGENT. (a) The Company represents, warrants,
covenants and agrees with the Remarketing Agent as follows:
(i) the Company has full power and authority to enter into
this Agreement and will have full power and authority to enter
into any agreements which it may enter into in connection with
the Remarketing; this Agreement and the transactions contemplated
hereby have been, and each other such agreement and the
transactions contemplated thereby will be, duly authorized,
executed and delivered by the Company; and this Agreement is, and
each such other agreement will be at the Reset Date, a valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles and except to
the extent that the right to indemnity and contribution in the
may be limited by state or federal
securities laws or the public policy underlying such laws;
(ii) the consummation of the transactions contemplated
herein do not now, and the consummation of the transactions
contemplated in any other agreement entered into by the Company
in connection with the Remarketing will not, at the Reset Date,
conflict with or constitute a breach of, or a default under, or
result in the creation or imposition of any lien, charge, other
encumbrance, or violation upon any property or
17
assets of the Trust, the Company or any of the Company's subsidiaries
pursuant to any contract, indenture, declaration of trust, deed of trust,
mortgage, loan agreement, note, lease or other instrument or agreement to
which the Trust, the Company or any of its subsidiaries is or will be a
party or by which it or any of them may be bound, or to which any of the
property or assets of any of them is or will be subject, nor will such
actions result in any violation of the provisions of the charter or by-laws
of the Company or any of its subsidiaries or any statute (including the
Securities Act, the Exchange Act and state securities laws) or any order,
rule or regulation of any court or governmental agency or body (including
the Commission) which has or will have jurisdiction over the Company or any
of its subsidiaries or any of their material property or assets except for
a conflict, breach, default, lien, charge, encumbrance or violation which
could not reasonably be expected to have a material adverse effect on the
consummation of the transactions contemplated herein or therein;
(iii) all required consents, rulings and approvals of
governmental authorities (other than "Blue Sky" authorities) required in
connection with the execution and delivery by the Company of this Agreement
and any agreement entered into by the Company in connection with the
transactions contemplated by any Disclosure Documents, and the performance
by the Company of its obligations hereunder and thereunder, have been
obtained and are in full force and effect and, at the Reset Date, will have
been obtained and be in full force and effect;
(iv) except as disclosed in the Disclosure Documents, neither the
Company nor any of its subsidiaries is or, at the Reset Date, will be (A)
in violation of its charters or by-laws, (B) in default in any respect, and
no event has occurred or will have occurred which, with notice or lapse of
time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any contract,
indenture, declaration of trust, deed of trust, mortgage, loan agreement,
note, lease or other instrument or agreement to which it is or will be
bound or to which any of its properties or assets is or will be subject or
(C) in violation of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject;
(v) the Disclosure Documents, including as provided in Section 3(x),
will not, at the Effective Time and thereafter through and including the
Reset Date, contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED that no representation or
warranty is made as to information contained in or omitted from the
Disclosure Documents in reliance upon and in conformity with written
information furnished to the Company by the Remarketing Agent specifically
for inclusion therein;
(vi) the financial statements of the Company contained (or
incorporated by reference) in the Disclosure Documents will present fairly
the financial position of the entity set forth therein as of the dates
indicated, and the results of operations and
18
changes in financial position of such entity for the periods covered, in
conformity with generally accepted accounting principles applied on a
consistent basis, except as otherwise set forth therein;
(vii) after the date of the most recent financial statements of the
Company contained (or incorporated by reference) in the Disclosure
Documents, there will not have been any material adverse change in the
condition (financial or other), stockholders' equity, results of operations
or business of the Company and its subsidiaries, except as disclosed in the
Disclosure Documents;
(viii) except as disclosed in the Disclosure Documents, there will be
no legal or governmental proceedings pending at the Reset Date to which the
Company or any of its subsidiaries is a party or of which any material
property or assets of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its subsidiaries,
could reasonably be expected to have a material adverse effect on the
condition (financial or other), stockholders' equity, results of operations
or business of the Company and its subsidiaries, taken as a whole;
(ix) any description of a contract, indenture, declaration of trust,
deed of trust, mortgage, loan agreement, note, lease or other instrument or
agreement contained in the Disclosure Documents will be, at the Effective
Time and thereafter through and including the Reset Date, true and complete
in all material respects; and
(x) If the Registration Statement is filed, the Registration
Statement at the Effective Time will conform to the requirements of the
Securities Act and the Rules and Regulations and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and the Prospectus, as of the Effective Time and thereafter
through and including the Reset Date, will conform to the requirements of
the Securities Act and the Rules and Regulations and will not include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED that no
representation or warranty is made as to information contained in or
omitted from any Preliminary Prospectus, the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Company by the Remarketing Agent specifically for
inclusion therein.
(b) The Remarketing Agent represents, warrants, covenants and agrees
with the Company that if it shall not have received a No Registration Opinion
and the Registration Statement shall not be effective on the Tender Notification
Date (or such later date as may be provided in Section 2(b)), the Remarketing
Agent will offer and sell the Subject Securities only in compliance with the
federal and state securities laws applicable to unregistered sales of securities
in effect at the time of the Remarketing.
19
SECTION 4. FEES AND EXPENSES. (a) The Company agrees to pay to the
Remarketing Agent upon settlement of the transactions contemplated by the
Remarketing (i) as compensation for its services hereunder, a fee equal to 1% of
the aggregate Par Amount of outstanding Subject Securities on the Reset Date,
plus (ii) all out-of-pocket expenses reasonably incurred by the Remarketing
Agent in connection with the performance of its duties; PROVIDED that if both
the Initial Remarketing and the Final Remarketing fail, the Company shall not be
required to pay any fees to, or reimburse any out-of-pocket expenses of, the
Remarketing Agent.
(b) The Remarketing Agent acknowledges and agrees that the
performance of its duties hereunder will be without charge to holders or
purchasers of the Subject Securities other than the Company.
SECTION 5. BROKER-DEALER PARTICIPATION. The Remarketing Agent shall
enter into Broker-Dealer Agreements with all broker-dealers ("BROKER-DEALERS"),
if any, which it selects to have participate in the remarketing process;
PROVIDED that (i) such Broker-Dealers agree to comply with the terms of this
Agreement, including the terms of Section 3(b) of this Agreement, (ii) any fees
or commissions paid to the Broker-Dealers shall be paid by the Remarketing Agent
out of the fees it is paid pursuant to Section 4(a), and (iii) the Remarketing
Agent agrees to provide to the Company an executed copy of each Broker-Dealer
Agreement. None of the Remarketing Agent, the Trust and the Company shall be
responsible for the out-of-pocket expenses of such Broker-Dealers or for
ensuring compliance by such Broker-Dealers with the terms of this Agreement
(except, with respect to the Remarketing Agent, as specifically set forth in the
Broker-Dealer Agreement).
SECTION 6. DISCLOSURE DOCUMENTS AND OTHER INFORMATION. (a) If (i)
the Registration Statement is not required to be filed with the Commission
pursuant to the provisions of Section 2(b) of this Agreement and (ii) the
Remarketing Agent determines that it is necessary or desirable to use a
disclosure document in connection with the performance of its obligation to
remarket the Subject Securities, the Remarketing Agent will notify the Company
and the Company will provide to the Remarketing Agent prior to the Tender
Notification Date at the Company's expense a disclosure document or documents
reasonably satisfactory to the Remarketing Agent and its counsel in respect of
the Subject Securities (collectively, and including any documents or other
information incorporated by reference therein, the "NONREGISTERED OFFERING
DOCUMENTS"). The Company will supply the Remarketing Agent at the Company's
expense with such number of copies of the Disclosure Documents as the
Remarketing Agent reasonably requests from time to time. The Company will
supplement and amend the Disclosure Documents so that at all times they will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements in the Disclosure Documents, in light of the
circumstances under which they were made, not misleading.
(b) The Company and the Trust each agrees to furnish to the
Remarketing Agent (i) as promptly as practicable after they are available, all
regular and periodic reports, if
20
any, which the Company or the Trust files with the Commission under the Exchange
Act and all reports which the Company or the Trust provides generally to holders
of its publicly held securities and (ii) from time to time, such other
information concerning the Company and the Trust as the Remarketing Agent may
reasonably request.
(c) The Company will provide the Remarketing Agent with such
certificates, opinions of counsel, accountants' letters and other support for
the information contained in any Disclosure Documents as the Remarketing Agent
and its counsel may reasonably request.
(d) If the Registration Statement is filed with the Commission, the
Company agrees that it will:
(i) prepare the Registration Statement in conformity with the
requirements of the Securities Act and the Rules and Regulations;
(ii) cause the Registration Statement to become effective prior to
the Tender Notification Date (or such later date as may be permitted in
accordance with the provisions of Section 2(b));
(iii) prepare the Prospectus in a form approved by the Remarketing
Agent and file the Prospectus in accordance with Rule 424(b) (or any
successor applicable rule) under the Securities Act and Rule 430A(a)(3) (or
any successor applicable rule) under the Securities Act; make no further
amendment or any supplement to the Registration Statement or to the
Prospectus except as permitted herein or required hereby; advise the
Remarketing Agent, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed and furnish the Remarketing Agent with copies thereof; advise
the Remarketing Agent, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the securities covered by such
Registration Statement for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information; and
in the event of the issuance of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus or
suspending any such qualification, promptly use its best efforts to obtain
its withdrawal;
(iv) furnish promptly to the Remarketing Agent and to counsel for the
Remarketing Agent a signed copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith;
21
(v) deliver promptly to the Remarketing Agent such number of the
following documents as the Remarketing Agent shall reasonably request: (1)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits) and
(2) each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus; and, if the delivery of a prospectus is required
at any time after the Effective Time in connection with the offering or
sale of the securities covered by the Registration Statement and if at such
time any events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary to amend or supplement the Prospectus in
order to comply with the Securities Act, notify the Remarketing Agent and,
upon its request, prepare and furnish without charge to the Remarketing
Agent as many copies as the Remarketing Agent may from time to time
reasonably request of an amended or supplemented Prospectus which will
correct such statement or omission or effect such compliance;
(vi) file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Remarketing
Agent, be required by the Securities Act or requested by the Commission;
(vii) prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 (or any applicable successor rule) of the Rules and
Regulations, furnish a copy thereof to the Remarketing Agent and counsel
for the Remarketing Agent;
(viii) as soon as practicable after the Effective Time, make
generally available to the Company's security holders and deliver to the
Remarketing Agent an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) (or any applicable
successor section) of the Securities Act and the Rules and Regulations
(including, at the option of the Company, Rule 158 (or any applicable
successor rule));
(ix) promptly from time to time take such action as the Remarketing
Agent may request to qualify the securities covered by the Registration
Statement for offering and sale under the securities laws of such
jurisdictions as the Remarketing Agent may request and to take all steps
necessary to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Subject Securities; PROVIDED, HOWEVER,
that in connection therewith the Company will not be required to qualify as
a foreign corporation or to file a general consent to service of process in
any jurisdiction where it is not so qualified; and
22
(x) use its best effort to have the Subject Securities listed on any
securities exchange or quoted in any automated inter-dealer quotation
system reasonably requested by the Remarketing Agent.
SECTION 7. INDEMNIFICATION. (a) The Company and the Trust will
indemnify and hold harmless the Remarketing Agent against any losses, claims,
damages or liabilities, joint or several, to which the Remarketing Agent may
become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Disclosure Document, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, and will reimburse the Remarketing Agent for any legal or
other expenses reasonably incurred by the Remarketing Agent in connection with
investigating or defending any such loss, claim, damage liability or action as
such expenses are incurred; PROVIDED, HOWEVER, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any Disclosure Document in
reliance upon and in conformity with written information furnished to the
Company by the Remarketing Agent specifically for use therein.
(b) The Remarketing Agent will indemnify and hold harmless the
Company and the Trust against any losses, claims, damages or liabilities to
which the Company or the Trust may become subject, under the Securities Act or
the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Disclosure Documents, or any amendment or supplement thereto, or arise out
of or are based upon the omission or the alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company or the Trust by the
Remarketing Agent specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company or the Trust in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such action
is brought against any indemnified party and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the
23
extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Remarketing Agent on the other from the
Remarketing of the Subject Securities in accordance with this Agreement or (ii)
if the allocation provided by clause (i) above 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 the Remarketing Agent on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Remarketing
Agent on the other shall be deemed to be in the same proportion as the aggregate
outstanding Liquidation Amount (if the Subject Securities are HIGH TIDES) or
principal amount (if the Subject Securities are Debentures) bear to the fees
received by the Remarketing Agent from the Company under this Agreement. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Remarketing Agent and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to inclde any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), the Remarketing Agent
shall not be required to contribute any amount in excess of the amount by which
the aggregate outstanding Liquidation Amount (if the Subject Securities are HIGH
TIDES) or principal amount (if the Subject Securities are Debentures) of the
Subject Securities remarketed exceeds the amount of any damages which the
Remarketing Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
24
(e) The obligations of the Company and the Trust under this Section
shall be in addition to any liability which the Company and the Trust may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Remarketing Agent within the meaning of the
Securities Act or the Exchange Act; and the obligations of the Remarketing Agent
under this Section shall be in addition to any liability which the Remarketing
Agent may otherwise have and shall extend, upon the same terms and conditions,
to each person, if any, who controls the Company and the Trust within the
meaning of the Securities Act or the Exchange Act.
SECTION 8. REMARKETING AGENT'S LIABILITIES. The Remarketing Agent
shall incur no liability to the Company, the Debenture Trustee, the Property
Trustee, the Administrative Trustees, the Delaware Trustee, the Tender Agent or
any holder of Subject Securities for its actions as Remarketing Agent pursuant
to the terms hereof and of the Trust Agreement or Indenture without gross
negligence or in the absence of wilful misconduct. The undertaking of the
Remarketing Agent to remarket any Subject Securities shall be on a "best
efforts" basis.
SECTION 9. TERMINATION. This Agreement will terminate upon the
earliest to occur of the following: (i) the written agreement of all parties
hereto; (ii) the date that no Debenture is outstanding; and (iii) the day
immediately following the Reset Date. The provisions of Sections 7, 8, 11 and 12
hereof will continue in effect as to actions prior to the date of termination,
and each party will pay to the others any amounts owing at the time of
termination.
SECTION 10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a)
The Remarketing Agent may resign at any time hereunder by giving at least 30
days' written notice thereof to the Company and the Tender Agent. No successor
need have accepted its appointment for such resignation to be effective.
(b) The Remarketing Agent may be removed at any time for Cause by the
holders of a majority in aggregate Par Amount of the Subject Securities
outstanding, by written notice to the Remarketing Agent, the Tender Agent and
the Company. No successor need have accepted its appointment for such removal
to be effective.
(c) If the Remarketing Agent resigns or is removed in accordance with
Section 10(b), the Company will use its best efforts to appoint as the successor
Remarketing Agent hereunder an investment bank, broker, dealer or other
organization which, in the judgment of the Company, is qualified to remarket the
Subject Securities and to establish the Term Provisions. If the Company fails
to so appoint a successor Remarketing Agent reasonably promptly, in light of the
proximity of the Tender Notification Date, or if such successor fails to accept
such appointment, the holders of not less than 25% in aggregate Par Amount of
the Subject Securities outstanding, by written notice to the Tender Agent and
the Company, may appoint a successor Remarketing Agent which is an investment
bank, broker, dealer or other organization qualified to remarket the Subject
Securities and to establish the Term Provisions; PROVIDED that for purposes of
determining the holders of not less than 25% in aggregate Par Amount of the
Subject
25
Securities outstanding, Subject Securities owned by the Company, the Trust or
any trustee or administrator of the Trust or any affiliate of any of the
foregoing shall be disregarded and deemed not to be outstanding.
(d) A successor Remarketing Agent shall accept its appointment by
executing and delivering a written instrument of acceptance to the Tender Agent
and the Company.
(e) The provisions of Sections 7, 8, 11 and 12 hereof will continue
in effect as to actions of the Remarketing Agent prior to the date of
resignation or removal, and the Remarketing Agent will pay to and have the right
to receive from the other parties hereto any amounts owing at the time of such
event.
(f) The Tender Agent shall provide written notice of each resignation
and each removal of the Remarketing Agent and each appointment of a successor
Remarketing Agent and such successor's acceptance thereof by first-class mail,
postage prepaid, to the holders of the Subject Securities as their names and
addresses appear in the applicable register.
(g) Any corporation or other entity into which the Remarketing Agent
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Remarketing Agent may be a party, or any corporation succeeding to all or
substantially all of the business of the Remarketing Agent, shall be the
successor of the Remarketing Agent hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
SECTION 11. DEALING IN SUBJECT SECURITIES BY REMARKETING AGENT. The
Remarketing Agent, either as principal or agent, may buy, sell, own, hold and
deal in Subject Securities, and may join in any action which any owner of the
Subject Securities may be entitled to take with like effect as if it did not act
in any capacity hereunder. Except as provided in the next succeeding sentence,
the Remarketing Agent is under no obligation at any time to purchase Subject
Securities. If the Term Provisions are established by the Remarketing Agent but
on the Reset Date the Remarketing Agent is unable to consummate the sale of one
or more Subject Securities tendered for remarketing, the Remarketing Agent shall
purchase such Subject Securities on the Reset Date for 101% of their aggregate
Par Amount; PROVIDED, HOWEVER, that if, prior to the Initial Remarketing
Termination Date or prior to the expiration of the Final Remarketing Period,
Term Provisions are established by the Remarketing Agent but the Remarketing
Agent is unable to consummate the sale of one or more Subject Securities
tendered for remarketing due to the occurrence of a Market Event, then the
Initial Remarketing or Final Remarketing, as the case may be, shall be deemed to
have failed, and the provisions of this Agreement relating to an Initial Failed
Remarketing or a Failed Final Remarketing, as applicable, shall apply. The
Remarketing Agent agrees that the purchase of Subject Securities for its own
account or the account of its affiliates will be upon terms no more favorable to
it than those pertaining to the purchase of Subject Securities in the market
(which shall be determined by the Remarketing Agent in its sole discretion) in
general at the time of such purchase and that neither it nor its affiliates will
elect to retain Subject Securities on the Reset Date if the Subject
26
Securities could be remarketed pursuant to this Agreement on terms more
favorable to the Trust or the Company than the terms upon which the Remarketing
Agent or such affiliates would continue to hold it. The Remarketing Agent,
either as principal or agent, may also engage in or be interested in any
financial or other transaction with the Trust or the Company and may act as
depository, trustee or agent for any committee or body of owners of Subject
Securities or other obligations of the Trust or the Company as freely as if it
had no obligations hereunder or under the Trust Agreement or Indenture.
SECTION 12. RECORDS. The Remarketing Agent agrees to keep books and
records relating to its activities as Remarketing Agent in accordance with
standard industry practice.
SECTION 13. PURCHASE AND SALES BY COMPANY. While the Company and its
affiliates may from time to time purchase, hold and sell Subject Securities, the
Company and the Remarketing Agent acknowledge that neither the Company nor any
affiliate of the Company may acquire or bid to acquire Subject Securities on the
Reset Date or submit orders in the Remarketing. The Remarketing Agent agrees
that it will not knowingly remarket any Subject Securities to the Company or any
of its affiliates.
SECTION 14. COMMUNICATION OF REMARKETING CONDITIONS. The Remarketing
Agent agrees, upon request from time to time by any holder of Subject Securities
and to the extent the Remarketing Agent deems advisable, to advise such holder
of current Remarketing Conditions.
SECTION 15. NOTICES. Unless otherwise provided herein, all notices,
requests, demands and formal actions hereunder shall be in writing and mailed or
sent by facsimile transmission or delivered, as follows:
If to the Company:
The Titan Corporation
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Tender Agent:
Wilmington Trust Company, as Tender Agent
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
27
If to the Trust:
c/o The Titan Corporation
Attention: General Counsel
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Remarketing Agent:
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Transactions Advisory Group - Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Each of the above parties may, by written notice given hereunder to
the others, designate any further or different addresses or telecopier numbers
to which subsequent notices, certificates, requests or other communications
shall be sent. In addition, the parties hereto may agree to any other means by
which subsequent notices, certificates, requests or other communications may be
sent.
SECTION 16. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon, inure to the benefit of and be enforceable by, the respective successors
and assigns of the Company, the Trust, the Tender Agent, the Remarketing Agent
and the holders of the Subject Securities.
SECTION 17. THE TENDER AGENT. In serving as the Tender Agent
hereunder, the Debenture Trustee shall be entitled to the protections and
benefits of Sections 6.01(d), 6.03, 6.06 and 12.07 of the Indenture and the
Property Trustee shall be entitled to the protections and benefits of Sections
3.09, 3.10 and 10.04 of the Trust Agreement.
SECTION 18. ENTIRE AGREEMENT. Except as otherwise provided herein,
this Agreement contains the entire agreement between the parties relating to the
subject matter hereof, and there are no other representations, endorsements,
promises, agreements or understandings, oral, written or inferred, among the
parties.
SECTION 19. DESCRIPTIVE HEADINGS. The descriptive headings of the
several sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
28
SECTION 20. AMENDMENT; WAIVER. (a) This Agreement shall not be
deemed or construed to be modified, amended, rescinded, canceled or waived, in
whole or in part, except by a written instrument signed by a duly authorized
representative of each of the Company, the Tender Agent, the Administrative
Trustees on behalf of the Trust and the Remarketing Agent.
(b) Failure of any party to exercise any right or remedy under this
Agreement in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
SECTION 21. SEVERABILITY. If any clause, provision or section of
this Agreement shall be ruled invalid or unenforceable by any court of competent
jurisdiction, the invalidity or unenforceability of such clause, provision or
section shall not affect any of the remaining clauses, provisions or sections
hereof.
SECTION 22. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in several counterparts, each of which shall be deemed an original and
all of which shall constitute but one and the same instrument. It shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart signed by the party against which enforcement of this
Agreement is sought.
SECTION 23. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING,
WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
29
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
THE TITAN CORPORATION
By:
Name:
Title:
TITAN CAPITAL TRUST
By:
Name: Xxxxxx Xxx Xxxxxxxx
Title: Administrative Trustee
By:
Name: Xxx Xxxxxxxxx
Title: Administrative Trustee
WILMINGTON TRUST COMPANY, as Tender Agent
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
Name:
Title:
