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Exhibit 4.17
, dated as of July 7, 1998 (the "Agreement")
by and between Xxxxxxx and Broad Home Corporation, a Delaware corporation (the
"Company"), KBHC Financing I, a Delaware statutory business trust (the "Trust"),
The First National Bank of Chicago, a national banking association, not
individually but solely as Purchase Contract Agent (the "Purchase Contract
Agent") and as attorney-in-fact of the holders of Purchase Contracts (as defined
in the Purchase Contract Agreement (as defined herein)), and Xxxxxxx Xxxxx &
Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "Remarketing
Agent").
WITNESSETH:
WHEREAS, the Company will issue $189,750,000 aggregate Stated Amount
of its FELINE PRIDES (the "FELINE PRIDES") under the Purchase Contract
Agreement, dated as of July 7, 1998, by and between the Purchase Contract Agent
and the Company (the "Purchase Contract Agreement"); and
WHEREAS, the Trust will issue concurrently in connection with the
issuance of the FELINE PRIDES 8% Capital Securities (the "Capital Securities")
in an aggregate stated liquidation amount of $189,750,000 under the Amended and
Restated Declaration of Trust, dated as of July 7, 1998, by and among the
Company, the Regular Trustees, the Delaware Trustee and the Institutional
Trustee (the "Declaration"); and
WHEREAS, the FELINE PRIDES will initially consist of 17,975,000
units referred to as "Income PRIDES" and 1,000,000 units referred to as "Growth
PRIDES."
WHEREAS, the sole assets of the Trust, $195,618,560 aggregate
principal amount of 8% Debentures due August 16, 2003 (the "Debentures") of the
Company, will be purchased by the Trust from the Company with the proceeds of
the sale of the Capital Securities and the proceeds of the sale of the common
securities of the Trust (the "Common Securities" and, together with the Capital
Securities, the "Trust Securities"); and
WHEREAS, the Capital Securities forming a part of the Income PRIDES
(or upon a dissolution of the Trust and the distribution of Debentures in
respect of such Income PRIDES as described in the Declaration, such Debentures)
will be pledged pursuant to the Pledge Agreement (the "Pledge Agreement"), dated
as of July 7, 1998, by and among the Company, The Bank of New York, as
collateral agent (the "Collateral Agent") and the Purchase Contract Agent, to
secure an Income PRIDES holder's obligations under the related Purchase
Contract on the Purchase Contract Settlement Date; and
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WHEREAS, the Capital Securities or the Debentures, as the case may
be, of such Capital Security or Debenture holders electing to have their Capital
Securities or Debentures remarketed, or of such Income PRIDES holders who have
elected not to settle the Purchase Contracts related to their Income PRIDES from
the proceeds of a Cash Settlement and who have not early settled their Purchase
Contracts, will be remarketed by the Remarketing Agent on the third Business Day
immediately preceding the Purchase Contract Settlement Date; and
WHEREAS, the applicable distribution rate on the Capital Securities
(and, thus, the interest rate on the Debentures) or the applicable interest rate
on the Debentures, as the case may be, that remain outstanding on and after the
Purchase Contract Settlement Date will be reset on the third Business Day
immediately preceding the Purchase Contract Settlement Date, to the Reset Rate
to be determined by the Reset Agent as the rate that such Capital Securities or
the Debentures, as the case may be, should bear in order to have an approximate
market value of 100.75% of the aggregate stated liquidation amount of the
Capital Securities or the aggregate principal amount of the Debentures, as the
case may be, on the third Business Day immediately preceding the Purchase
Contract Settlement Date, provided that in the determination of such Reset Rate,
the Company may limit the Reset Spread (a component of the Reset Rate) to be no
higher than 300 basis points (3.00%) and the Company shall, if applicable, limit
the Reset Rate to the maximum rate permitted by applicable law; and
WHEREAS, the Company has requested Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") to act as the Reset
Agent and as the Remarketing Agent, and as such to perform the services
described herein; and
WHEREAS, Xxxxxxx Xxxxx is willing to act as Reset Agent and
Remarketing Agent and as such to perform such duties on the terms and conditions
expressly set forth herein;
NOW, THEREFORE, for and in consideration of the covenants herein
made, and subject to the conditions herein set forth, the parties hereto agree
as follows:
Section 1. Definitions. Capitalized terms used and not defined in
this Agreement, in the recitals hereto or in the paragraph preceding such
recitals shall have the meanings assigned to them in the Purchase Contract
Agreement or, if not therein defined, the Declaration or, if not therein
defined, the Pledge Agreement.
Section 2. Appointment and Obligations of Remarketing Agent. (a) The
Company hereby appoints Xxxxxxx Xxxxx and Xxxxxxx Xxxxx hereby accepts such
appointment, (i) as the Reset Agent to determine in consultation with the
Company, in the manner provided for herein and in the Declaration (as in effect
on the date of this ) with respect to the Trust Securities
or the Indenture (as in effect on the date of
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this ) with respect to the Debentures, as the case may be,
the Reset Rate that, in the opinion of the Reset Agent, will, when applied to
the Capital Securities or, if the Debentures have been distributed in exchange
for the Capital Securities, the Debentures, will enable a Capital Security or
Debenture, as the case may be, to have an approximate market value, as of the
third Business Day preceding the Purchase Contract Settlement Date, of 100.75%
of the stated liquidation amount in the case of such Capital Security or 100.75%
of the principal amount in the case of such Debenture (provided that the
Company, by notice to the Reset Agent prior to the tenth Business Day preceding
the Purchase Contract Settlement Date, (x) may limit such Reset Rate to be no
higher than the rate on the Two-Year Benchmark Treasury plus 300 basis points
(3.00%) and (y) shall, if applicable, limit the Reset Rate so that it does not
exceed the maximum rate permitted by applicable law), and (ii) as the exclusive
Remarketing Agent (subject to the right of Xxxxxxx Xxxxx to appoint additional
remarketing agents hereunder as described below) to remarket the Capital
Securities or the Debentures, as the case may be, of such Capital Security or
Debenture holders electing to have their Capital Securities or Debentures
remarketed, or of such Income PRIDES holders who have not early settled the
related Purchase Contracts and have failed to notify the Purchase Contract
Agent, on or prior to the fifth Business Day immediately preceding the Purchase
Contract Settlement Date, of their intention to settle the related Purchase
Contracts through Cash Settlement, for settlement on the Purchase Contract
Settlement Date. On the third day immediately preceding the Purchase Contract
Settlement Date the distribution rate per annum on the Common Securities will
also be reset to the Reset Rate on the Capital Securities, as determined by the
Reset Agent. In connection with the remarketing contemplated hereby, the
Remarketing Agent will enter into a Supplemental (the
"Supplemental ") with the Company, the Trust (unless the
Trust shall have been dissolved) and the Purchase Contract Agent, which shall
either be (i) substantially in the form attached hereto as Exhibit A (with such
changes as the Company and the Remarketing Agent may agree upon, it being
understood that changes may be necessary in the representations, warranties,
covenants and other provisions of the Supplemental due to
changes in law or facts and circumstances or in the event that Xxxxxxx Xxxxx is
not the sole remarketing agent or in the event that Debentures rather than
Capital Securities are remarketed, and with such further changes therein as the
Remarketing Agent may reasonably request, or (ii) in such other form as the
Remarketing Agent may reasonably request, subject to the approval of the Company
(such approval not to be unreasonably withheld). Anything herein to the contrary
notwithstanding, Xxxxxxx Xxxxx shall not be obligated to act as Remarketing
Agent or Reset Agent hereunder unless the Supplemental is
in form and substance reasonably satisfactory to Xxxxxxx Xxxxx. The Company
agrees that Xxxxxxx Xxxxx shall have the right, on 15 Business Days notice to
the Company, to appoint one or more additional remarketing agents so long as any
such additional remarketing agents shall be reasonably acceptable to the
Company. Upon any such appointment, the parties shall enter into an appropriate
amendment to this Agreement to reflect the addition of any such remarketing
agent.
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(b) Pursuant to the Supplemental , the
Remarketing Agent, either as sole remarketing agent or as representative of a
group of remarketing agents appointed as aforesaid, will agree, subject to the
terms and conditions set forth herein and therein, to use its reasonable efforts
to remarket, on the third Business Day immediately preceding the Purchase
Contract Settlement Date, the Capital Securities or the Debentures, as the case
may be, that the Institutional Trustee or the Debenture Trustee (as such terms
are defined in the Declaration) shall have notified the Remarketing Agent have
been tendered for, or otherwise are to be included in, the Remarketing (such
remarketing being hereinafter referred to as the "Remarketing"), at a price of
approximately 100.75% of the aggregate stated liquidation amount of such
Capital Securities, plus any accrued and unpaid distributions (including any
deferred distributions) or in the case of Debentures, at a price of
approximately 100.75% of the aggregate principal amount of such Debentures, plus
any accrued and unpaid interest (including any deferred interest).
Notwithstanding the preceding sentence, the Remarketing Agent shall not remarket
any Capital Securities or Debentures, as the case may be, for a price less than
100% of the aggregate stated liquidation amount or aggregate principal amount of
such Capital Securities or Debentures, respectively, plus accrued and unpaid
distributions or accrued and unpaid interest, as the case may be. After
deducting the fee specified in Section 3 below, the proceeds of such remarketing
shall be paid to the Collateral Agent in accordance with Section 4.6 of the
Pledge Agreement and Section 5.4 of the Purchase Contract Agreement (each of
which Sections are incorporated herein by reference). The right of each holder
of Capital Securities or Debentures, as the case may be, or Income PRIDES to
have Capital Securities or Debentures, as the case may be, tendered for
remarketing shall be limited to the extent that (i) the Remarketing Agent
conducts a remarketing pursuant to the terms of this Agreement, (ii) Capital
Securities or Debentures, as the case may be, tendered have not been called for
redemption, (iii) the Remarketing Agent is able to find a purchaser or
purchasers for tendered Capital Securities or Debentures, as the case may be, at
a price of not less than 100% of the stated liquidation or principal amount
thereof, as the case may be, plus accrued and unpaid distributions or interest,
as applicable, thereon, and (iv) such purchaser or purchasers deliver the
purchase price therefor to the Remarketing Agent as and when required.
(c) It is understood and agreed that neither the Remarketing Agent
nor the Reset Agent shall have any obligation whatsoever to purchase any Capital
Securities or Debentures, whether in the Remarketing or otherwise, and shall in
no way be obligated to provide funds to make payment upon tender of Capital
Securities or Debentures for remarketing or to otherwise expend or risk their
own funds or incur or be exposed to financial liability in the performance of
their respective duties under this Agreement or the Supplemental , and, without limitation to the foregoing, the Remarketing Agent shall
not be deemed an underwriter of the remarketed Capital Securities or
Debentures. Neither the Trust, any Trustee nor the Sponsor shall be obligated in
any case to provide funds to make payment upon tender of Capital Securities or
Debentures for remarketing.
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Section 3. Fees. With respect to the Remarketing, the Remarketing
Agent shall retain as a remarketing fee (the "Remarketing Fee") an amount not
exceeding 50 basis points (.50%), of the aggregate stated liquidation or
principal amount, as the case may be, of the remarketed Capital Securities or
Debentures, as the case may be, from any amount received in connection with such
Remarketing in excess of the aggregate stated liquidation amount or aggregate
principal amount of such remarketed Capital Securities or Debentures plus any
accrued and unpaid distributions (including deferred distributions) or any
accrued and unpaid interest (including any deferred interest), as the case may
be. In addition, the Reset Agent shall receive from the Company a reasonable and
customary fee (the "Reset Agent Fee"); provided, however, that if the
Remarketing Agent shall also act as the Reset Agent, then the Reset Agent shall
not be entitled to receive any such Reset Agent Fee. Payment of such Reset Agent
Fee shall be made by the Company on the third Business Day immediately preceding
the Purchase Contract Settlement Date in immediately available funds or, upon
the instructions of the Reset Agent, by certified or official bank check or
checks or by wire transfer.
Section 4. Replacement and Resignation of Remarketing Agent. (a) The
Company may in its absolute discretion replace Xxxxxxx Xxxxx as the Remarketing
Agent and as the Reset Agent hereunder by giving notice prior to 3:00 p.m., New
York City time, on the eleventh Business Day immediately prior to the Purchase
Contract Settlement Date, provided that the Company must replace Xxxxxxx Xxxxx
both as Remarketing Agent and as Reset Agent unless Xxxxxxx Xxxxx shall
otherwise agree. Any such replacement shall become effective upon the Company's
appointment of a successor to perform the services that would otherwise be
performed hereunder by the Remarketing Agent and the Reset Agent. Upon providing
such notice, the Company shall use all reasonable efforts to appoint such a
successor and to enter into a remarketing agreement with such successor as soon
as reasonably practicable.
(b) Xxxxxxx Xxxxx may resign at any time and be discharged from its
duties and obligations hereunder as the Remarketing Agent and/or as the Reset
Agent by giving notice prior to 3:00 p.m., New York City time, on the eleventh
Business Day immediately prior to the Purchase Contract Settlement Date. Any
such resignation shall become effective upon the Company's appointment of a
successor to perform the services that would otherwise be performed hereunder by
the Remarketing Agent and/or the Reset Agent. Upon receiving notice from the
Remarketing Agent and/or the Reset Agent that it wishes to resign hereunder, the
Company shall appoint such a successor and enter into a remarketing agreement
with it as soon as reasonably practicable.
Section 5. Dealing in the Securities. Each of the Remarketing Agent
and the Reset Agent, when acting hereunder or, in the case of the Remarketing
Agent, under the Supplemental Remarketing Agreement, or when acting in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold or deal in any of the Capital Securities, Debentures, Growth PRIDES,
Income PRIDES or any other securities of the
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Company or the Trust. With respect to any Capital Securities, Debentures, Growth
PRIDES, Income PRIDES or any other securities of the Company or the Trust owned
by it, each of the Remarketing Agent and the Reset Agent may exercise any vote
or join in any action with like effect as if it did not act in any capacity
hereunder. Each of the Remarketing Agent and the Reset Agent, in its individual
capacity, either as principal or agent, may also engage in or have an interest
in any financial or other transaction with the Company and the Trust as freely
as if it did not act in any capacity hereunder.
Section 6. Registration Statement and Prospectus. In connection with
the Remarketing, if and to the extent required in the view of counsel (which
need not be an opinion) for either the Remarketing Agent or the Company) by
applicable law, regulations or interpretations in effect at the time of such
Remarketing, the Company and the Trust shall use their reasonable efforts to
have a registration statement relating to the Capital Securities or the
Debentures, as the case may be, effective under the Securities Act of 1933 prior
to the third Business Day immediately preceding the Purchase Contract Settlement
Date, if requested by the Remarketing Agent, shall furnish a current preliminary
prospectus and, if applicable, a current preliminary prospectus supplement to be
used in such Remarketing by the Remarketing Agent not later than seven Business
Days prior to the Purchase Contract Settlement Date (or such earlier date as the
Remarketing Agent may reasonably request) and in such quantities as the
Remarketing Agent may reasonably request, and shall furnish a current final
prospectus and, if applicable, a final prospectus supplement to be used in such
Remarketing by the Remarketing Agent not later than the third Business Day
immediately preceding the Purchase Contract Settlement Date in such quantities
as the Remarketing Agent may reasonably request, and shall pay all expenses
relating thereto. The Company shall also take all such actions as may (upon
advice of counsel to the Company or the Remarketing Agent) be necessary or
desirable under state securities or blue sky laws in connection with the
Remarketing.
Section 7. Conditions to the Remarketing Agent's Obligations. (a)
The obligations of the Remarketing Agent and the Reset Agent under this
Agreement and, in the case of the Remarketing Agent, the Supplemental
Remarketing Agreement shall be subject to the terms and conditions of this
Agreement and the Supplemental Remarketing Agreement, including, without
limitation, the following conditions: (i) the Capital Securities or Debentures,
as the case may be, tendered for, or otherwise to be included in such,
Remarketing have not been called for redemption, (ii) the Remarketing Agent is
able to find a purchaser or purchasers for tendered Capital Securities or
Debentures, as the case may be, at a price not less than 100% of the stated
liquidation amount or principal amount thereof, as the case may be, plus accrued
and unpaid distributions or interest, as applicable, thereon, (iii) the
Purchase Contract Agent, the Collateral Agent, the Custodial Agent, the Company,
the Institutional Trustee, the Debt Trustee and the Trust shall have per formed
their respective obligations in connection with the Remarketing pursuant to the
Purchase Contract Agreement, the Pledge Agreement, the Declaration, the
Indenture, this Agreement and the Supplemental Remarketing Agreement (including,
without limitation,
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giving the Remarketing Agent notice of the aggregate liquidation amount or
principal amount, as the case may be, of Capital Securities or Debentures, as
the case may be, to be remarketed no later than 10:00 a.m., New York City time,
on the fourth Business Day prior to the Purchase Contract Settlement Date and
concurrently delivering the Capital Securities or Debentures to be remarketed to
the Remarketing Agent), (iv) no Event of Default (as defined in the Declaration
and the Indenture) shall have occurred and be continuing, (v) the accuracy of
the representations and warranties of the Company and the Trust included and
incorporated by reference in this Agreement and the Supplemental Remarketing
Agreement or in certificates of any officer of the Company or any of its
subsidiaries or of any trustee of the Trust delivered pursuant to the provisions
included or incorporated by reference in this Agreement or the Supplemental
Remarketing Agreement, (vi) the performance by the Company and the Trust of
their covenants and other obligations included and incorporated by reference in
this Agreement and the Supplemental Remarketing Agreement, and (vii) the
satisfaction of the other conditions set forth and incorporated by reference in
this Agreement and the Supplemental Remarketing Agreement.
(b) If at any time during the term of this Agreement, any Indenture
Event of Default or Declaration Event of Default, or event that with the passage
of time or the giving of notice or both would become an Indenture Event of
Default or Declaration Event of Default, has occurred and is continuing under
the Indenture or the Declaration, then the obligations and duties of the
Remarketing Agent and the Reset Agent under this Agreement and the Supplemental
Remarketing Agreement shall be suspended until such default or event has been
cured. The Company will promptly give the Remarketing Agent notice of all such
defaults and events of which the Company is aware.
Section 8. Termination of Remarketing Agreement. This Agreement
shall terminate as to any Remarketing Agent or Reset Agent which is replaced on
the effective date of its replacement pursuant to Section 4(a) hereof or
pursuant to Section 4(b) hereof. Notwithstanding any such termination, the
obligations set forth in Section 3 hereof shall survive and remain in full force
and effect until all amounts payable under said Section 3 shall have been paid
in full. In addition, each former Remarketing Agent and Reset Agent shall be
entitled to the rights and benefits under Section 10 of this Agreement
notwithstanding the replacement or resignation of such Remarketing Agent or
Reset Agent
Section 9. Remarketing Agent's Performance; Duty of Care. The duties
and obligations of the Remarketing Agent and the Reset Agent shall be determined
solely by the express provisions of this Agreement and, in the case of the
Remarketing Agent, the Supplemental Remarketing Agreement. No implied covenants
or obligations of or against the Remarketing Agent or the Reset Agent shall be
read into this Agreement or the Supplemental Remarketing Agreement. In the
absence of bad faith on the part of the Remarketing Agent or the Reset Agent, as
the case may be, the Remarketing Agent and the Reset Agent each may conclusively
rely upon any document furnished to it which
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purports to conform to the requirements of this Agreement or the Supplemental
Remarketing Agreement, as the case may be, as to the truth of the statements
expressed therein. Each of the Remarketing Agent and the Reset Agent shall be
protected in acting upon any document or communication reasonably believed by it
to be signed, presented or made by the proper party or parties. Neither the
Remarketing Agent nor the Reset Agent shall have any obligation to determine
whether there is any limitation under applicable law on the Reset Rate on the
Capital Securities or the Debentures or, if there is any such limitation, the
maximum permissible Reset Rate on the Capital Securities or the Debentures, and
they shall rely solely upon written notice from the Company and the Trust (which
the Company and the Trust agree to provide prior to the tenth Business Day
before the Purchase Contract Settlement Date) as to whether or not there is any
such limitation and, if so, the maximum permissible Reset Rate. Neither the
Remarketing Agent nor the Reset Agent shall incur any liability under this
Agreement or the Supplemental Remarketing Agreement to any beneficial owner or
holder of Capital Securities, Debentures or other securities, either in its
individual capacity or as Remarketing Agent or Reset Agent, as the case may be,
for any action or failure to act in connection with the Remarketing or otherwise
in connection with the transactions contemplated by this Agreement or the
Supplemental Remarketing Agreement. The provisions of this Section 9 shall
survive any termination of this Agreement and shall also continue to apply to
every Remarketing Agent and Reset Agent notwithstanding their resignation or
removal.
Section 10. Indemnification and Contribution. (a) The Company and
the Trust, jointly and severally, agree to indemnify and hold harmless the
Remarketing Agent, the Reset Agent and their respective directors, officers,
employees, agents, affiliates and each person, if any, who controls the
Remarketing Agent or the Reset Agent within the meaning of either Section 15 of
the Securities Act of 1933, as amended (the "1933 Act"), or Section 20 of the
Securities Exchange Act of 1934, as amended (the "1934 Act") (the Remarketing
Agent, the Reset Agent and each such person or entity being an "Indemnified
Party"), as follows:
(i) from and against any and all losses, claims, damages,
liabilities and expenses whatsoever, joint or several, as incurred, to which
such Indemnified Party may become subject under any applicable federal or state
law, or otherwise, and related to, arising out of, or based on (A) the failure
to have an effective Registration Statement (as defined in the Supplemental
Remarketing Agreement) under the 1933 Act relating to the Capital Securities or
the Debentures, as the case may be, if required, or the failure to satisfy the
prospectus delivery requirements of the 1933 Act because the Company or the
Trust failed to provide the Remarketing Agent with a Prospectus (as defined in
the Supplemental Remarketing Agreement) for delivery, or (B) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereto (including any information
deemed to be a part of the Registration Statement at the time it became
effective pursuant to paragraph (b) of Rule 430A under the 1933 Act, if
applicable), or the omission or alleged omission therefrom of
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a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (C) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or the
Prospectus, or any amendment or supplement thereto, or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or (D) any untrue statement or alleged untrue statement of a
material fact contained in any other information (whether oral or written) or
documents (including, without limitation, any documents incorporated or deemed
to be incorporated by reference in any such information or documents) provided
by the Company or the Trust for use in connection with the remarketing of the
Capital Securities or the Debentures, as the case may be, or any of the
transactions related thereto, or (E) any breach by the Company or the Trust of
any of the representations, warranties or agreements included or incorporated by
reference in this Agreement or the Supplemental Remarketing Agreement, or (F)
any failure by the Company or the Trust to make or consummate the remarketing of
the Capital Securities or the Debentures, as the case may be (including, without
limitation, any Failed Remarketing), or the withdrawal, recission, termination,
amendment or extension of the terms of such remarketing, or (G) any failure on
the part of the Company or the Trust to comply, or any breach by the Company or
the Trust of, any of the provisions included or incorporated by reference in
this Agreement, the Supplemental Remarketing Agreement, the Purchase Contract
Agreement, the Income PRIDES, the Growth PRIDES, the Pledge Agreement, the
Declaration, the Capital Securities, the Guarantee, the Indenture or the
Debenture (collectively, the "Operative Documents") or (H) the remarketing of
the Capital Securities or the Debentures, as the case may be, or any other
transaction contemplated by any of the Operative Documents, or the engagement of
the Remarketing Agent or the Reset Agent pursuant to, or the performance by the
Remarketing Agent or the Reset Agent of the respective services contemplated by,
this Agreement or the Supplemental Remarketing Agreement;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
related to, arising out of or based on any matter described in (i) above; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx),
incurred in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever related to, arising out or based on any
matter described in (i) above, whether or not such Indemnified Party is a party
and whether or not such claim, action or proceeding is initiated or brought by
or on behalf of the Company or the Trust, to the extent that any such expense is
not paid under (i) or (ii) above;
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provided, however, that the Company and the Trust shall not be liable under
clause (i)(B), (i)(C) or (i)(D) to the extent any such loss, claim, damage,
liability or expense arises out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and conformity with written
information furnished to the Company or the Trust by the Remarketing Agent or
the Reset Agent expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or any other documents used in connection with
remarketing of the Capital Securities or the Debentures, as the case may be.
The Company and the Trust jointly and severally agree that no
Indemnified Party shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to the Company or the Trust or their respective
security holders or creditors relating to or arising out of the engagement of
the Remarketing Agent or the Reset Agent pursuant to, or the performance by the
Remarketing Agent or the Reset Agent of their respective services contemplated
by, this Agreement or the Supplemental Remarketing Agreement except to the
extent that any loss, claim, damage, liability or expense is found in a final
judgment by a court of competent jurisdiction to have resulted from the willful
misconduct, gross negligence or bad faith of the Remarketing Agent or the Reset
Agent, as the case may be.
The Company and the Trust jointly and severally agree that, without
Xxxxxxx Xxxxx'x prior written consent, neither of them will settle, compromise
or consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any action or claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 10 (whether
or not Xxxxxxx Xxxxx or any other Indemnified Party is an actual or potential
party to such claim, action or proceeding), unless such settlement, compromise
or consent (i) includes an unconditional release of each Indemnified Party from
all liability arising out of such litigation, investigation, proceeding, action
or claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or on behalf of an Indemnified Party.
(b) If the indemnification provided for in Section 10(a) hereof is
for any reason unavailable to or insufficient to hold harmless an Indemnified
Party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then the Company and the Trust, jointly and severally,
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 and the Trust on the one hand and the Remarketing Agent and the
Reset Agent on the other hand from the remarketing of the Capital Securities or
the Debentures, as the case may be, contemplated hereby or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company
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and the Trust on the one hand and of the Remarketing Agent and the Reset Agent
on the other hand in connection with the statements, omissions or other matters
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Trust on the one hand and the Remarketing Agent and the
Reset Agent on the other hand in connection with the remarketing of the Capital
Securities or the Debentures, as the case may be, contemplated hereby shall be
deemed to be in the same respective proportions as the aggregate liquidation
amount of the Capital Securities or the aggregate principal amount of the
Debentures, as the case may be, which are or are to be remarketed bears to the
aggregate fees actually received by the Remarketing Agent and the Reset Agent
under Section 3 hereof. The relative fault of the Company and the Trust on the
one hand and the Remarketing Agent and the Reset Agent on the other hand (i) in
the case of an untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, shall be determined by reference
to, among other things, whether such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Trust on the one hand or by the
Remarketing Agent or the Reset Agent on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission and (ii) in the case of any other action or omission
shall be determined by reference to, among other things, whether such action or
omission was taken or omitted to be taken by the Company or the Trust, on the
one hand, or by the Remarketing Agent or the Reset Agent, on the other hand, and
the parties' relative intent, knowledge, access to information and opportunity
to prevent or correct such action or omission. The Company, the Trust, the
Remarketing Agent and the Reset Agent agree that it would not be just and
equitable if contribution pursuant to this Section 10(b) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 10(b). The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an Indemnified Party and referred to above in this Section 10(b) shall be
deemed to include any legal or other expenses incurred by such Indemnified Party
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or any such omission or alleged omission or any other such action or
omission; provided, however, that to the extent permitted by applicable law, in
no event shall the Remarketing Agent or the Reset Agent be required to
contribute any amount which, in the aggregate, exceeds the aggregate fees
received by them under Section 3 of this Agreement. No investigation or failure
to investigate by any Indemnified Party shall impair the foregoing
indemnification and contribution agreement or any rights an Indemnified Party
may have. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
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(c) In the event an Indemnified Party is requested or required to
appear as a witness in any action brought by or on behalf of or against the
Company or the Trust, the Company and the Trust, jointly and severally, agree to
reimburse the Remarketing Agent or the Reset Agent, as the case may be, for all
reasonable expenses, as incurred, which are incurred by the Remarketing Agent or
the Reset Agent, as the case may be, in connection with such Indemnified Party's
appearing and preparing to appear as such a witness, including, without
limitation, the reasonable fees and disbursements of its legal counsel, and to
compensate the Remarketing Agent or the Reset Agent, as the case may be, in an
amount to be mutually agreed upon. In addition, the Company and the Trust,
jointly and severally, agree to compensate the Remarketing Agent or the Reset
Agent, as the case may be, in an amount to be mutually agreed upon per person
per day for each day that an officer, director or employee of the Remarketing
Agent or the Reset Agent, as the case may be, or any of their respective
affiliates is involved in preparation, discovery or testimony pertaining to any
litigation, discovery or investigation in connection with this Agreement or the
Supplemental Remarketing Agreement.
(d) Promptly after receipt by an Indemnification Party of written
notice of any claim or commencement of an action or proceeding with respect to
which indemnification may be sought hereunder, such Indemnified Party will
notify the Company and the Trust in writing of such claim or of the commencement
of such action or proceeding, but failure so to notify the Company and the Trust
will not relieve the Company and the Trust from any liability which they may
have to such Indemnified Party under this indemnification and contribution
agreement, and in any event will not relieve the Company and the Trust from any
other liability that they may have to such Indemnified Party. Xxxxxxx Xxxxx
shall have the right to select counsel in connection with any transaction for
which any Indemnified Party may be entitled to indemnification or contribution
hereunder, provided that in no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all Indemnified Parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
(e) Anything herein or in the Supplemental Remarketing Agreement to
the contrary notwithstanding, the provisions of this Section 10, and the rights
of the Remarketing Agent, the Reset Agent and the other Indemnified Parties
hereunder, shall be in addition to, and not in limitation of, any rights or
benefits (including, without limitation, rights to indemnification or
contribution) which the Remarketing Agent, the Reset Agent or any other
Indemnified Party may have under any other instrument or agreement.
Section 11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
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Section 12. Term of Agreement. (a) Unless otherwise terminated in
accordance with the provisions hereof and except as otherwise provided herein,
this Agreement shall remain in full force and effect from the date hereof until
the first day thereafter on which no Capital Securities or Debentures are
outstanding, or, if earlier, the Business Day immediately following the Purchase
Contract Settlement Date. Anything herein to the contrary notwithstanding, the
provisions of the last section of Section 8 hereof and the provisions of
Sections 3, 9, 10 and 12(b) hereof shall survive any termination of this
Agreement and remain in full force and effect.
(b) All representations and warranties included or incorporated by
reference in this Agreement, or the Supplemental Remarketing Agreement, or
contained in certificates of officers of the Company or trustees of the Trust
submitted pursuant hereto or thereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the
Remarketing Agent, the Reset Agent or any of their controlling persons, or by or
on behalf of the Company, the Trust or the Purchase Contract Agent, and shall
survive the remarketing of the Capital Securities or the Debentures, as the
case may be.
Section 13. Successors and Assigns. The rights and obligations of
the Company, the Trust and the Purchase Contract Agent (both in its capacity as
Purchase Contract Agent and as attorney-in-fact) hereunder may not be assigned
or delegated to any other person without the prior written consent of the
Remarketing Agent and the Reset Agent. The rights and obligations of the
Remarketing Agent and the Reset Agent hereunder may not be assigned or delegated
to any other person without the prior written consent of the Company, except
that the Remarketing Agent shall have the right to appoint additional
remarketing agents as provided herein. This Agreement shall inure to the benefit
of and be binding upon the Company, the Trust, the Purchase Contract Agent, the
Remarketing Agent and the Reset Agent and their respective successors and
assigns and the other Indemnified Parties (as defined in Section 10 hereof) and
the successors, assigns, heirs and legal representatives of the Indemnified
Parties. The terms "successors" and "assigns" shall not include any purchaser of
Securities, Capital Securities or Debentures merely because of such purchase.
Section 14. Headings. Section headings have been inserted in this
Agreement and the Supplemental Remarketing Agreement as a matter of convenience
of reference only, and it is agreed that such section headings are not a part of
this Agreement or the Supplemental Remarketing Agreement and will not be used in
the interpretation of any provision of this Agreement or the Supplemental
Remarketing Agreement.
Section 15. Severability. If any provision of this Agreement or the
Supplemental Remarketing Agreement shall be held or deemed to be or shall, in
fact, be invalid, inoperative or unenforceable as applied in any particular case
in any or all jurisdictions because it conflicts with any provisions of any
constitution, statute, rule or
13
14
public policy or for any other reason, then, to the extent permitted by law,
such circumstances shall not have the effect of rendering the provision in
question invalid, inoperative or unenforceable in any other case, circumstances
or jurisdiction, or of rendering any other provision or provisions of this
Agreement or the Supplemental Remarketing Agreement, as the case may be,
invalid, inoperative or unenforceable to any extent whatsoever.
Section 16. Counterparts. This Agreement and the Supplemental
Remarketing Agreement may be executed in counterparts, each of which shall be
regarded as an original and all of which shall constitute one and the same
document.
Section 17. Amendments. This Agreement and the Supplemental
Remarketing Agreement may be amended by any instrument in writing signed by the
parties hereto. The Company, the Trust and the Purchase Contract Agent agree
that they will not enter into, cause or permit any amendment or modification of
the Purchase Contract Agreement, the Declaration, the Indenture, the Pledge
Agreement, the Debentures, the Capital Securities, the FELINE PRIDES or any
other instruments or agreements relating to the Capital Securities, the
Debentures or the FELINE PRIDES which would in any way affect the rights, duties
or obligations of the Remarketing Agent or the Reset Agent without the prior
written consent of the Remarketing Agent or the Reset Agent, as the case may be.
Section 18. Notices. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or pursuant
hereto shall be made in writing or transmitted by any standard form of
telecommunication, including telephone or telecopy, and confirmed in writing.
All written notices and confirmations of notices by telecommunication shall be
deemed to have been validly given or made when delivered or mailed, registered
or certified mail, return receipt requested and postage prepaid. All such
notices, requests, consents or other communications shall be addressed as
follows: if to the Company, to Xxxxxxx and Broad Home Corporation, 00000
Xxxxxxxx Xxxx., Xxx Xxxxxxx, XX 00000, Attention: Chief Financial Officer, with
a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx; if to the Remarketing Agent or
Reset Agent, to Xxxxxxx Xxxxx & Co. at Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xxxx Xxxxx, with a copy to Xxxxx & Xxxx LLP, 000
Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000, Attention: Xxxx X. Xxxxxxx; and if
to the Purchase Contract Agent, to The First National Bank of Chicago, Corporate
Trust Services Division, One First Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX
00000-0000, or to such other address as any of the above shall specify to the
other in writing.
Section 19. Information. The Company and the Trust agree to furnish
the Remarketing Agent and the Reset Agent with such information and documents as
the
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Remarketing Agent or the Reset Agent may reasonably request in connection with
the transactions contemplated by this Remarketing Agreement and the Supplemental
Remarketing Agreement, and make reasonably available to the Remarketing Agent,
the Reset Agent and any accountant, attorney or other advisor retained by the
Remarketing Agent or the Reset Agent such information that parties would
customarily require in connection with a due diligence investigation conducted
in accordance with applicable securities laws and cause the Company's officers,
directors, employees and accountants and the Trust's trustees to participate in
all such discussions and to supply all such information reasonably requested by
any such person in connection with such investigation.
Section 20. Other. Subject to the provisions of the next succeeding
paragraph, not later than 35 Business Days prior to the Purchase Contract
Settlement Date (or such earlier date as the Remarketing Agent may reasonably
request), the Company will deliver to the Remarketing Agent either (A) an
opinion of legal counsel (which counsel shall be reasonably acceptable, and
which opinion shall be in form and substance reason ably acceptable, to the
Remarketing Agent) to the effect that the Capital Securities or, if the
Debentures are being remarketed, the Debentures are not subject to, or are
exempt from, the usury provisions of Article XV, ss. 1 of the California
Constitution (together with any successor provisions thereto, the "Usury
Provisions") or (B) a certificate, signed by the Company's Chief Financial
Officer and General Counsel, to the effect that the Company has filed an
application for qualification of the Capital Securities under the California
Corporate Securities Law of 1968, as amended, or any successor thereto (the
"CSL"), which, if and when granted, will entitle the Capital Securities or, if
the Debentures are being remarketed, the Debentures to the exemption from the
Usury Provisions provided by Section 25116 (or any successor thereto) of the CSL
or (C) in the event that the Company is unable to deliver the opinion referred
to in clause (A) of this sentence and the exemption provided by Section 25116
(or any successor thereto) of the CSL is no longer available, a certificate,
signed by the Company's Chief Financial Officer and General Counsel, to the
effect that (i) the Company has been unable to obtain such opinion and that such
exemption is no longer available and (ii) the Reset Rate shall in no event
exceed the Maximum Rate (as defined below), and setting forth the Maximum Rate.
The Company and the Trust will use their best effort to obtain the opinion
referred to in clause (A) of the preceding sentence or, in the event that an
application contemplated by clause (B) of the preceding sentence is filed, the
Company and the Trust will use their best efforts to obtain such qualification
and the permit entitling the Capital Securities or the Debentures, as the case
may be, to the exemption from the Usury Provisions prior to the tenth Business
Day before the Purchase Contract Settlement Date.
The provisions of the immediately preceding paragraph shall not be
applicable if each of the Reset Agent and the Company shall determine, each in
its sole and absolute discretion, on the date which is 35 Business Days prior to
the Purchase Contract Settlement Date (or such earlier date as the Remarketing
Agent may reasonably request), that
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there is no reasonable likelihood that (i) the interest rate on the Two-Year
Benchmark Treasury (as defined in the Declaration) plus three hundred basis
points (3%) will, as of the Purchase Contract Settlement Date (as defined in the
Supplemental Remarketing Agreement attached hereto as Exhibit A), exceed the
maximum per annum rate (the "Maximum Rate") specified under Article XV, ss.1,
Section 1, Paragraph (2) of the California Constitution ("Paragraph (2)");
provided that, for purposes of determining the Discount Rate (as defined below)
for purposes of clause (b) of Paragraph (2), the parties shall use the lower of
the Discount Rate as of May 25, 1998 and the Discount Rate as of July 25, 2001.
Notwithstanding the foregoing, if, prior to the tenth Business Day prior to the
Purchase Contract Settlement Date, either the Reset Agent or the Company shall
determine, in its sole and absolute discretion, that there is a possibility that
the rate of interest on the Two-Year Benchmark Treasury plus the actual Reset
Spread (as defined in the Declaration) as determined by the Reset Agent will in
fact exceed the Maximum Rate, then, upon notice from the Reset Agent, the
Company will, as soon as possible, either deliver the opinion of counsel
contemplated by clause (A), or file the application for qualification and
deliver the officers' certificate contemplated by clause (B), or deliver the
officers' certificate contemplated by clause (C), of the immediately preceding
paragraph, in which case the provisions of the immediately preceding paragraph
shall be applicable and the Company shall otherwise comply with the requirements
of the immediately preceding paragraph. As used in this paragraph, the term
"Discount Rate" means the rate of interest prevailing on the 25th day of the
applicable month established by the Federal Reserve Bank of San Francisco on
advances to member banks under Sections 13 and 13a of the Federal Reserve Act as
now in effect or hereafter from time to time amended (or if there is no such
single determinable rate of advances, the closest counterpart of such rate as
shall be designated by the Superintendent of Banks of the State of California
unless some other person or agency is delegated such authority by the California
Legislature.)
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IN WITNESS WHEREOF, each of the Company, the Trust, the Purchase
Contract Agent and the Remarketing Agent has caused this Agreement to be
executed in its name and on its behalf by one of its duly authorized signatories
as of the date first above written.
XXXXXXX AND BROAD
HOME CORPORATION
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
KBHC FINANCING I
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
CONFIRMED AND ACCEPTED:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------------
Authorized Signatory
THE FIRST NATIONAL BANK OF CHICAGO
not individually but solely as Purchase
Contract Agent and as attorney-in-fact
for the holders of the Purchase Contracts
By: /s/ Xxxx X. Xxxx
---------------------------------------------
Name: Xxxx X. Xxxx
Title: Asst. Vice President
18
Exhibit A to
Remarketing Agreement
Form of Supplemental Remarketing Agreement
Supplemental Remarketing Agreement dated August __, 2001 among Xxxxxxx and
Broad Home Corporation, a Delaware corporation (the "Company"), [delete
reference to the Trust if Debentures are being remarketed] KBHC Financing I, a
Delaware statutory business trust (the "Trust"), Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "Remarketing Agent"), and The
First National Bank of Chicago, as Purchase Contract Agent and attorney-in-fact
for the Holders of the Purchase Contracts (as such terms are defined in the
Purchase Contract Agreement referred to in Schedule I hereto)
NOW, THEREFORE, for and in consideration of the covenants herein made, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used and not defined in this Agreement
shall have the meanings assigned to them in the Remarketing Agreement dated as
of July __, 1998 (the "Remarketing Agreement") among the Company, KBHC Financing
I, a Delaware statutory business trust, the Purchase Contract Agent and Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or, if not
defined in the Remarketing Agreement, the meanings assigned to them in the
Purchase Contract Agreement (as defined in Schedule I hereto).
2. Registration Statement and Prospectus. The Company and the Trust have
filed with the Securities and Exchange Commission, and there has become
effective, a registration statement on Form S-3 (Nos. 333-51825 and
333-51825-01), including a prospectus, relating to the Securities (as such term
is defined on Schedule I hereto). Such Registration Statement, as amended, and
including the information deemed to be a part thereof pursuant to Rule 430A
under the Securities Act of 1933, as amended (the "1933 Act"), and the documents
incorporated or deemed to be incorporated by reference therein, are hereinafter
called, collectively, the "Registration Statement"; [the related preliminary
prospectus dated __________, including the documents incorporated or deemed to
be incorporated by reference therein, [and preliminary prospectus supplemented
dated ________] are hereinafter called, [collectively] the "preliminary
prospectus";] and the related prospectus dated, including the documents
incorporated or deemed to be incorporated by reference therein, [and prospectus
supplement dated ] are hereinafter called, [collectively,] the "Prospectus". The
Company and the Trust have provided copies of the Registration Statement [, the
preliminary prospectus] and the Prospectus to the Remarketing Agent, and hereby
consent to the use of the [preliminary prospectus] and the
19
Prospectus in connection with the remarketing of the Securities. [In the event
that a Registration Statement is not required, insert the following: The Company
and the Trust have provided to the Remarketing Agent, for use in connection with
remarketing of the Securities (as such term is defined on Schedule I hereto), a
[preliminary remarketing memorandum and] remarketing memorandum and [describe
other materials, if any]. Such remarketing memorandum (including the documents
incorporated or deemed to be incorporated by reference therein, [and] [describe
other materials] are hereinafter called, collectively, the "Prospectus", [and
such preliminary marketing memorandum (including the documents incorporated or
deemed to be incorporated by reference therein) is hereinafter called a
"preliminary prospectus")]. The Company and the Trust hereby consent to the use
of the Prospectus [and the preliminary prospectus] in connection with the
remarketing of the Securities]. All references in this Agreement to amendments
or supplements to the Registration Statement [, the preliminary prospectus] or
the Prospectus shall be deemed to mean and include the filing of any document
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), which is
incorporated or deemed to be incorporated by reference in the Registration
Statement [, the preliminary prospectus] or the Prospectus, as the case may be.
3. Provisions Incorporated by Reference.
(a) Subject to Section 3(b), the provisions of the Underwriting
Agreement (other than Section 2, Section 6, Section 7 and Section 10 thereof)
are incorporated herein by reference, mutatismutandis, and the Company and the
Trust hereby make the representations and warranties, and agree to comply with
the covenants and obligations, set forth in the provisions of the Underwriting
Agreement incorporated by reference herein, as modified by the provisions of
Section 3(b) hereof.
(b) With respect to the provisions of the Underwriting Agreement
incorporated herein, for the purposes hereof, (i) all references therein to the
"Underwriter" or "Underwriters" shall be deemed to refer to the Remarketing
Agent and all references to the "Representative" or the "Representatives" shall
be deemed to refer to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
("Xxxxxxx Xxxxx"); (ii) all references therein to the "Securities" shall be
deemed to refer to the Securities as defined herein; (iii) all references
therein to the "Closing Time" shall be deemed to refer to the Remarketing
Closing Date specified in Schedule I hereto; (iv) all references therein to the
"Registration Statement" [, any "preliminary prospectus"] or the "Prospectus"
shall be deemed to refer to [the Registration Statement, the preliminary
prospectus and] the Prospectus, respectively, as defined herein; (v) all
references therein to this "Agreement," the "Underwriting Agreement," "hereof,"
"herein" and all references of similar import, shall be deemed to mean and refer
to this Supplemental Remarketing Agreement; (vi) all references therein to "the
date hereof," "the date of this Agreement" and all similar references shall be
deemed to refer to the date of this Supplemental Remarketing Agreement; (vii)
all references therein to the Date of Delivery shall be disregarded; (viii)
Section
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5(e) of the Underwriting Agreement shall be amended to refer solely to the
Securities (as defined herein) and the ratings set forth therein shall be o from
Xxxxx'x and o from S&P; (ix) the references in Section 1(a)(iv) of the
Underwriting Agreement to the "Registration Statement" and the "Prospectus"
shall be deemed to refer to [the Registration Statement (as defined herein and]
the Prospectus (as defined herein) in the form first provided to the Remarketing
Agent for use in connection with the remarketing of the Securities,
[respectively], (x) the reference in Section 9(a)(i) of the Underwriting
Agreement to the "Registration Statement" shall be deemed to refer to the
Prospectus in the form first provided to the Remarketing Agent for use in
connection with the remarketing of the Securities; (xi) Section 9(a)(iv) of the
Underwriting Agreement shall be deemed to also include a reference to the
Securities (as defined herein); and (xii) [other changes].
4. Remarketing. Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth or incorporated by reference
herein and in the Remarketing Agreement, the Remarketing Agent agrees to use its
reasonable efforts to remarket, in the manner set forth in Section 2(b) of the
Remarketing Agreement, the aggregate stated liquidation or principal amount, as
the case may be, of Securities set forth in Schedule I hereto at a purchase
price not less than 100% of the aggregate stated liquidation amount or aggregate
principal amount, as the case may be, of the Securities plus any accrued and
unpaid distributions or interest, as applicable, thereon. In connection
therewith, the registered holder or holders thereof agree, in the manner
specified in Section 5 hereof, to pay to the Remarketing Agent a Remarketing Fee
equal to an amount not exceeding 50 basis points (.50%) of such aggregate stated
liquidation or principal amount, as the may be, payable by deduction from any
amount received in connection from such Remarketing in excess of the aggregate
stated liquidation amount or aggregate principal amount, as the case may be, of
the Securities plus accrued and unpaid distribution or interest, as the case
may be. The right of each holder of Securities to have Securities tendered for
purchase shall be limited to the extent set forth in the last sentence of
Section 2(b) of the Remarketing Agreement (which is incorporated by reference
herein). As more fully provided in Section 2(c) of the Remarketing Agreement
(which is incorporated by reference herein), the Remarketing Agent is not
obligated to purchase any Securities in the remarketing or otherwise, and
neither the Trust, any Trustee, the Sponsor nor the Remarketing Agent shall be
obligated in any case to provide funds to make payment upon tender of Securities
for remarketing.
5. Delivery and Payment. Delivery of payment for the remarketed Securities
by the purchasers thereof identified by the Remarketing Agent and payment of the
Remarketing Fee shall be made on the Remarketing Closing Date at the location
and time specified in Schedule I hereto (or such later date not later than five
Business Days after such date as the Remarketing Agent shall designate), which
date and time may be postponed by agreement between the Remarketing Agent, the
Company and the Trust. Delivery of the remarketed Securities and payment of the
Remarketing Fee shall be made to the Remarketing Agent against payment by the
respective purchasers of the remarketed
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21
Securities of the consideration therefor as specified herein, which
consideration shall be paid to the Collateral Agent for the account of the
persons entitled thereto by certified or official bank check or checks drawn on
or by a New York Clearing House bank and payable in immediately available funds
or in immediately available funds by wire transfer to an account or accounts
designated by the Collateral Agent.
If the Securities are not represented by a Global Security held by or on
behalf of The Depositary Trust Company, certificates for the Securities shall be
registered in such names and denominations as the Remarketing Agent may request
not less than one full Business Day in advance of the Remarketing Closing Date,
and the Company, the Trust, the Collateral Agent and the registered holder or
holders thereof agree to have such certificates available for inspection,
packaging and checking by the Remarketing Agent in New York, New York not later
than 1:00 p.m. on the Business Day prior to the Remarketing Closing Date.
6. Notices. Unless otherwise specified, any notices, requests, consents or
other communications given or made hereunder or pursuant hereto shall be made in
writing or transmitted by any standard form of telecommunication, including
telephone or telecopy, and confirmed in writing. All written notices and
confirmations of notices by telecommunication shall be deemed to have been
validly given or made when delivered or mailed, registered or certified mail,
return receipt requested and postage prepaid. All such notices, requests,
consents or other communications shall be addressed as follows: if to the
Company, to Xxxxxxx and Broad Home Corporation, 00000 Xxxxxxxx Xxxx., Xxx
Xxxxxxx, XX 00000, Attention: Chief Financial Officer, with a copy to Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxxx X. Xxxxxx; if to the Remarketing Agent, to Xxxxxxx Xxxxx &
Co. at Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, at World Financial
Center, North Tower, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: __; with a
copy to Xxxxx & Xxxx LLP, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000,
Attention: Xxxx X. Xxxxxxx; and if to the Purchase Contract Agent, to The First
National Bank of Chicago, Corporate Trust Services Division, One First Xxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000-0000, or to such other address as any of
the above shall specify to the other in writing.
7. Conditions to Obligations of Remarketing Agent. Anything herein to the
contrary notwithstanding, the parties hereto agree (and the holders and
beneficial owners of the Securities will be deemed to agree) that the
obligations of the Remarketing Agent under this Agreement and the Remarketing
Agreement are subject to the satisfaction of the conditions set forth in Section
7 of the Remarketing Agreement (which are incorporated herein by reference), and
to the satisfaction, on the Remarketing Closing Date, of the conditions
incorporated by reference herein from Section 5 of the Underwriting Agreement
as modified by Section 3(b) hereof (including, without limitation, the delivery
of opinions of counsel, officers' certificates and accountants' comfort letters
in form and substance satisfactory to the Remarketing Agent, the accuracy as of
the Remarketing
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Closing Date of the representations and warranties of the Company and the Trust
included and incorporated by reference herein and the performance by the Company
and the Trust of their respective obligations under the Remarketing Agreement
and this Agreement as and when required hereby and thereby). In addition,
anything herein or in the Remarketing Agreement to the contrary notwithstanding,
the Remarketing Agreement and this Agreement may be terminated by the
Remarketing Agent, by notice to the Company at any time prior to the time of
settlement on the Remarketing Closing Date, if any of the events or conditions
set forth in Section 9 of the Underwriting Agreement, as modified by Section
3(b) hereof, shall have occurred or shall exist.
8. Indemnity and Contribution. Anything herein to the contrary
notwithstanding, the Remarketing Agent shall be entitled to indemnity and
contribution on the terms and conditions set forth in the Remarketing Agreement.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Trust and the Remarketing Agent.
Very truly yours,
XXXXXXX AND BROAD HOME CORPORATION
By:
---------------------------------------
Name:
Title:
[KBHC Financing I]
By:
---------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------------------
Authorized Signatory
[Add other Remarketing Agents, if any]
THE FIRST NATIONAL BANK OF CHICAGO
not individually but solely as Purchase
Contract Agent and as attorney-in-fact
for the holders of the Purchase Contracts
By:
---------------------------------------
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Name:
Title:
SCHEDULE I
Securities subject to the remarketing: 8% Capital Securities of the Trust/8%
Debentures due August 16, 2003 of the Company (the "Securities")
Purchase Contract Agreement, dated as of July 7, 1998 (the "Purchase Contract
Agreement") by and between Xxxxxxx and Broad Home Corporation, a Delaware
corporation, and The First National Bank of Chicago, a national banking
association
Pledge Agreement dated as of July 7, 1998 (the "Pledge Agreement") by and
between Xxxxxxx and Broad Home Corporation, a Delaware corporation, The
First National Bank of Chicago, a national banking association, and The
Bank of New York
Amended and Restated Declaration of Trust dated as of July 7, 1998 (the
"Declaration") of KBHC Financing I, a Delaware statutory business trust
Indenture dated as of June 30, 1998 (the "Base Indenture") by and between
Xxxxxxx and Broad Home Corporation, a Delaware corporation, and The First
National Bank of Chicago
First Supplemental Indenture, dated as of June 30, 1998 (the "Supplemental
Indenture" and, together with the Base Indenture, the "Indenture") by and
between Xxxxxxx and Broad Home Corporation, a Delaware corporation, and The
First National Bank of Chicago
Aggregate [Liquidation Amount/Principal Amount] of Securities: $_______________
Underwriting Agreement, dated June 30, 1998 (the "Underwriting Agreement") among
Xxxxxxx and Broad Home Corporation, KBHC Financing I, and Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation.
Remarketing Closing Date, Time and Location:
A-7
