EXHIBIT 4.9
FORM OF
[ ], 2004
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
This Agreement is dated as of [ ], 2004 (the "AGREEMENT") among
Xxxxxxxxx'x, Inc., a Delaware corporation (the "COMPANY"), Banc of America
Securities LLC, as the Remarketing Agent (the "REMARKETING AGENT"), and U.S.
Bank Trust National Association , 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 referred to below).
Section 1. Definitions.
(a) Capitalized terms used and not defined in this Agreement shall have
the meanings set forth in the Purchase Contract Agreement, dated as of [ ],
2004, between the Company and U.S. Bank Trust National Association, as Purchase
Contract Agent, as amended from time to time (the "PURCHASE CONTRACT
AGREEMENT").
(b) As used in this Agreement, the following terms have the following
meanings:
"PRELIMINARY PROSPECTUS" means any preliminary prospectus relating to the
Remarketed Senior Notes included in the Registration Statement or supplementing
such Registration Statement pursuant to Rule 424(b) under the Securities Act,
including the documents incorporated by reference therein as of the date of such
Preliminary Prospectus; and any reference to any amendment or supplement to such
Preliminary Prospectus shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus under the Exchange Act, and
incorporated by reference in such Preliminary Prospectus.
"PROSPECTUS" means the prospectus relating to the Remarketed Senior Notes
included in the Registration Statement, in the form in which it was first used
by the Remarketing Agent to confirm sales of the Remarketed Senior Notes in the
Remarketing, including the documents
incorporated by reference therein as of the date of such Prospectus; and any
reference to any amendment or supplement to such Prospectus shall be deemed to
refer to and include any documents filed after the date of such Prospectus under
the Exchange Act, and incorporated by reference in such Prospectus.
"REGISTRATION STATEMENT" means a registration statement under the
Securities Act of 1933, as amended (the "SECURITIES ACT") prepared by the
Company pursuant to Section 5 hereunder covering, inter alia, the Remarketing of
the Remarketed Senior Notes, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in such registration
statement, and any post-effective amendments thereto.
"REMARKETED SENIOR NOTES" means the Pledged Senior Notes and the Separate
Senior Notes, if any, subject to Remarketing as identified to the Remarketing
Agent by the Purchase Contract Agent and the Custodial Agent, respectively,
after 11:00 a.m., New York City time, on the Business Day immediately preceding
the applicable Remarketing Date, and shall include: (a) (i) in the case of the
Initial Remarketing, the Pledged Senior Notes and (ii) in the case of the Final
Remarketing, the Senior Notes of the Holders of Corporate Units who have not
notified the Purchase Contract Agent on or prior to 5:00 p.m., New York Time, on
the fifth Business Day immediately preceding the Purchase Contract Settlement
Date of their intention to effect a Cash Settlement of the related Purchase
Contracts pursuant to the terms of the Purchase Contract Agreement or who have
so notified the Purchase Contract Agent but failed to make the required cash
payment on the fourth Business Day immediately preceding the Purchase Contract
Settlement Date pursuant to the terms of the Purchase Contract Agreement, and
(b) the Separate Senior Notes of the holders of Separate Senior Notes, if any,
who have elected to have their Separate Senior Notes be remarketed in such
Remarketing pursuant to the terms of the Purchase Contract Agreement.
"REMARKETING" means the remarketing of the Remarketed Senior Notes
pursuant to this .
"REMARKETING AGENT" means Banc of America Securities LLC or any successor
remarketing agent appointed by the Company pursuant to Section 10 hereof.
"REMARKETING DATE" means either the Initial Remarketing Date (as defined
herein) or the Final Remarketing Date (as defined herein), as context requires.
"REMARKETING MATERIALS" means the Preliminary Prospectus, the Prospectus
or any other information furnished by the Company to the Remarketing Agent for
distribution to investors in connection with the Remarketing.
"SENIOR NOTES" means the senior notes due 2009 of the Company.
"TRANSACTION DOCUMENTS" means this Agreement, the Purchase Contract
Agreement, the Pledge Agreement and the Indenture, in each case as amended or
supplemented from time to time.
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Section 2. Appointment and Obligations of the Remarketing Agent.
(a) The Company hereby appoints Banc of America Securities LLC as the
exclusive Remarketing Agent, and, subject to the terms and conditions set forth
herein, Banc of America Securities LLC hereby accepts appointment as Remarketing
Agent, for the purpose of (i) Remarketing the Remarketed Senior Notes on behalf
of the holders thereof, (ii) determining, in consultation with the Company, in
the manner provided for herein and in the Purchase Contract Agreement and the
Indenture, the Reset Rate for the Senior Notes, and (iii) performing such other
duties as are assigned to the Remarketing Agent in the Transaction Documents.
(b) Unless a Special Event Redemption has occurred prior to such date, on
the third Business Day immediately preceding February 16, 2007 (the "INITIAL
REMARKETING DATE"), the Remarketing Agent shall use commercially reasonable
efforts to remarket (based on the Reset Rate) (the "INITIAL REMARKETING") the
Remarketed Senior Notes, at a price (the "REMARKETING PRICE") equal to
approximately 100.25% (or, if the Remarketing Agent is unable to remarket the
Remarketed Senior Notes at such a rate, at a rate below 100.25% in the
discretion of the Remarketing Agent, but in no event less than 100.00%) of the
sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes
Purchase Price.
(c) In the case of a Failed Initial Remarketing and unless a Special Event
Redemption has occurred prior to such date, on the third Business Day
immediately preceding the Purchase Contract Settlement Date (the "FINAL
REMARKETING DATE"), the Remarketing Agent shall use its commercially reasonable
efforts to remarket (based on the Reset Rate) (the "FINAL REMARKETING") the
Remarketed Senior Notes at a price (the "FINAL REMARKETING PRICE") equal to
approximately 100.25% (or, if the Remarketing Agent is unable to remarket the
Remarketed Senior Notes at such a rate, at a rate below 100.25% in the
discretion of the Remarketing Agent, but in no event less than 100.00%) of the
aggregate principal amount of the Remarketed Senior Notes being remarketed in
such Final Remarketing. It is understood and agreed that the Remarketing on any
Remarketing Date will be considered successful and no further attempts will be
made if the resulting proceeds are at least 100% of the sum of the Treasury
Portfolio Purchase Price and the Separate Senior Notes Purchase Price; in the
case of the Initial Remarketing, and at least 100% of the aggregate principal
amount of the Remarketed Senior Notes, in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall
determine, in consultation with the Company, the rate per annum, rounded to the
nearest one-thousandth (0.001) of one percent per annum, that the Senior Notes
should bear (the "RESET RATE") in order for the Remarketed Senior Notes to have
an aggregate market value equal to the Remarketing Price or the Final
Remarketing Price, as the case may be, and that in the sole reasonable
discretion of the Remarketing Agent will enable it to remarket all of the
Remarketed Senior Notes at the Remarketing Price or Final Remarketing Price, as
the case may be, in such Remarketing.
(e) In the event of a Failed Remarketing or if no Senior Notes are
included in Corporate Units, and if none of the holders of the Separate Senior
Notes elect to have Senior Notes be remarketed in such Remarketing, the
applicable interest rate on the Senior Notes will
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not be reset and will continue to be the Coupon Rate set forth in the Indenture
as supplemented from time to time.
(f) If, by 4:00 p.m. (New York City time) on the applicable Remarketing
Date, the Remarketing Agent is unable to remarket all of the Remarketed Senior
Notes at the Remarketing Price or the Final Remarketing Price, as the case may
be, pursuant to the terms and conditions hereof, a Failed Remarketing shall be
deemed to have occurred, and the Remarketing Agent shall so advise, by
telephone, the Depositary, the Purchase Contract Agent and the Company. Whether
or not there has been a Failed Remarketing will be determined in the sole
reasonable discretion of the Remarketing Agent. Promptly following any Failed
Remarketing, the Remarketing Agent shall return Separate Senior Notes submitted
for remarketing, if any, to the Custodial Agent for distribution to the
appropriate Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m.
(New York City time) on the applicable Remarketing Date, the Remarketing Agent
shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent and the Company of
the Reset Rate determined by the Remarketing Agent in such Remarketing and
the number of Remarketed Senior Notes sold in such Remarketing;
(ii) each purchaser (or the Depositary Participant thereof) of
Remarketed Senior Notes of the Reset Rate and the number of Remarketed
Senior Notes such purchaser is to purchase; and
(iii) each such purchaser to give instructions to its Depositary
Participant to pay the purchase price on the third Business Day
immediately following the date of such Successful Remarketing in same-day
funds against delivery of the Remarketed Senior Notes purchased through
the facilities of the Depositary.
The Remarketing Agent shall also, if required by the Securities Act or the rules
and regulations promulgated thereunder, deliver to each purchaser a Prospectus
in connection with the Remarketing.
(h) After deducting any fees specified in Section 4 below, the proceeds
from a Successful Remarketing (i) with respect to the Senior Notes that are
components of the Corporate Units, shall be paid to the Collateral Agent in
accordance with Sections 5.07 and 7.05 of the Pledge Agreement, as the case may
be, and Section 5.02 of the Purchase Contract Agreement and (ii) with respect to
the Separate Senior Notes, shall be paid to the Custodial Agent for payment to
the holders of such Separate Senior Notes in accordance with Section 5.02 of the
Purchase Contract Agreement and Sections 5.07 and 7.05 of the Pledge Agreement.
(i) The right of each holder of Separate Senior Notes or Corporate Units
to have Remarketed Senior Notes remarketed and sold on any Remarketing Date
shall be subject to the conditions that (i) the Remarketing Agent conducts a
Remarketing pursuant to the terms of this Agreement, (ii) a Special Event
Redemption has not occurred prior to such Remarketing Date, (iii) the
Remarketing Agent is able to find a purchaser or purchasers for Remarketed
Senior Notes at the Remarketing Price or the Final Remarketing Price, as the
case may be, based on the
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Reset Rate, and (iv) such purchaser or purchasers deliver the purchase price
therefor to the Remarketing Agent as and when required.
(j) It is understood and agreed that the Remarketing Agent shall not have
any obligation whatsoever to purchase any Remarketed Senior Notes, whether in
the Remarketing or otherwise, and shall in no way be obligated to provide funds
to make payment upon tender of Senior Notes for Remarketing or to otherwise
expend or risk its own funds or incur or to be exposed to financial liability in
the performance of its duties under this Agreement, and without limitation of
the foregoing, the Remarketing Agent shall not be deemed an underwriter of the
Remarketed Senior Notes. The Company shall similarly not be obligated in any
case to provide funds to make payment upon tender of the Senior Notes for
Remarketing.
Section 3. Representations and Warranties of the Company. The Company
represents and warrants (i) on and as of the date any Remarketing Materials are
first distributed in connection with the Remarketing (the "COMMENCEMENT DATE")
and (ii) on and as of the applicable Remarketing Date, in each case except as
disclosed in writing to the Remarketing Agent by the Company prior to the
applicable date, that:
(a) Each of the representations and warranties of the Company as set forth
in Section 1 (except for paragraphs [ ]) of the Underwriting Agreement dated
as of [ ], 2004 relating to the issuance of Units by the Company (the
"UNDERWRITING AGREEMENT") among the Company and the Underwriters identified in
Schedule A thereto, is true and correct as if made on each of the dates
specified above; provided that for purposes of this Section 3(a), (i) any
reference in such sections of the Underwriting Agreement to the "Underwriter" or
"Underwriters" or the "Representative" or "Representatives" shall be deemed to
refer to the Remarketing Agent, (ii) the "Designated Securities" shall be deemed
to refer to the Remarketed Senior Notes, (iii) the "Registration Statement", the
"Prospectus" or the "Preliminary Prospectus" shall be deemed to refer to such
terms as defined herein, (iv) the "First Closing Date" and "Optional Closing
Date" shall be each deemed to refer to the settlement date for the applicable
Remarketing Date, (v) "this Agreement", the "Underwriting Agreement", "hereof",
"herein" and all references of similar import, shall be deemed to mean and refer
to this and (vi) "the date hereof", "the date of this
Agreement" and all similar references shall be deemed to refer to the date of
this .
(b) The Registration Statement, if any, in the form delivered prior to the
applicable date set forth in the first paragraph of this Section 3 or to be
delivered to the Remarketing Agent, has been declared effective by the
Securities and Exchange Commission (the "COMMISSION") under the Securities Act
and no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been initiated or, to the
best knowledge of the Company, threatened by the Commission.
(c) The documents incorporated by reference in the Prospectus, if any, at
the time when they were filed with the Commission, complied in all material
respects with the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder, and, when read together with the other information
in the Prospectus, if any, at the time the Registration Statement and any
amendments thereto became effective, and at the Commencement Date, applicable
Remarketing Date and applicable settlement date, will not
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contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information relating to the Remarketing Agent furnished in writing to the
Company by the Remarketing Agent or its counsel expressly for use in the
Prospectus.
(d) The Registration Statement, if any, complies, and any post-effective
amendment thereto, any Rule 462(b) Registration Statement and any Remarketing
Materials (and any amendment or supplement thereto) will comply in all material
respects with the requirements of the Securities Act and the rules and
regulations promulgated thereunder, and the Trust Indenture Act, and the
Registration Statement as amended and supplemented by the Prospectus, any
post-effective amendment thereto and any Rule 462(b) Registration Statement do
not and will not, as of the applicable effective date thereof, contain any
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.
The Prospectus, if any, as amended or supplemented, as of its date, and any
further supplements to the Prospectus, as of the applicable filing date as to
any such supplement and any Remarketing Materials (and any amendment or
supplement thereto), as of the date of such Remarketing Materials and the
Remarketing Date, do not and will not contain 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. No representation and warranty is made as to any statement of
eligibility on Form T-1 filed or incorporated by reference as part of the
Registration Statement, the Prospectus or the Remarketing Materials, or as to
statements in or omissions from the Registration Statement, the Prospectus or
the Remarketing Materials made in reliance upon and in conformity with written
information furnished to the Company by the Remarketing Agent.
(e) This Agreement has been duly authorized, executed and delivered by the
Company.
Section 4. Fees.
(a) In the event of a Successful Initial Remarketing of the Remarketed
Senior Notes, the Remarketing Agent will retain from any proceeds if the
Successful Remarketing as a remarketing fee an amount equal to the lesser of (i)
25 basis points (.25%) of the sum of the Treasury Portfolio Purchase Price and
the Separate Senior Note Purchase Price and (ii) the amount of the proceeds of
such Successful Remarketing in excess of the Treasury Portfolio Purchase Price
plus the Separate Senior Notes Purchase Price; provided, however, that to the
extent that such amount is less than 25 basis points of the Treasury Portfolio
Price plus the Separate Senior Notes Purchase Price, the Company shall pay an
amount, as an additional remarketing fee, to the Remarketing Agent equal to such
shortfall (such amount, together with the amount in the previous sentence, the
"REMARKETING FEE").
(b) In the event of a Successful Final Remarketing of the Remarketed
Senior Notes, the Remarketing Agent will retain from any proceeds of the
Successful Final Remarketing as a remarketing fee an amount equal to the lesser
of (i) 25 basis points (.25%) of the aggregate principal amount of the
Remarketed Senior Notes and (ii) the amount of the proceeds of such
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Successful Final Remarketing in excess of the aggregate principal amount of the
Remarketed Senior Notes; provided, however, that to the extent that such amount
is less than 25 basis points of the aggregate principal amount of the remarketed
Pledged Senior Notes and Separate Senior Notes, the Company shall pay an amount,
as an additional remarketing fee, to the Remarketing Agent equal to such
shortfall (such amount, together with the amount in the previous sentence, the
"FINAL REMARKETING FEE").
Section 5. Covenants of the Company. If and to the extent the Remarketed
Senior Notes are required, in connection with the Remarketing (in the view of
counsel, which need not be in the form of a written opinion, for either the
Remarketing Agent or the Company), to be registered under the Securities Act as
in effect at the time of the Remarketing, the Company covenants and agrees as
follows:
(a) The Company shall prepare the Registration Statement and the
Prospectus, in a form approved by the Remarketing Agent, which approval shall
not be unreasonably withheld, shall file any such Prospectus pursuant to the
Securities Act within the period required by the Securities Act and the rules
and regulations thereunder and shall use reasonable best efforts to cause the
Registration Statement to be declared effective by the Commission prior to the
second Business Day immediately preceding the applicable Remarketing Date.
(b) The Company shall file promptly with the Commission any amendment to
the Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the reasonable judgment of the Company or the Remarketing Agent, be
required by the Securities Act or requested by the Commission.
(c) The Company shall 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 to furnish the
Remarketing Agent with copies thereof.
(d) The Company shall file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of a
Prospectus is required in connection with the offering or sale of the Remarketed
Senior Notes.
(e) The Company shall 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 the Prospectus, of the
suspension of the qualification of any of the Remarketed Senior Notes 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 Prospectus or suspending
any such qualification, to use promptly reasonable best efforts to obtain its
withdrawal.
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(f) The Company shall furnish promptly to the Remarketing Agent such
copies of the following documents as the Remarketing Agent shall reasonably
request: (A) conformed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto (in each case excluding
exhibits); (B) the Preliminary Prospectus and any amended or supplemented
Preliminary Prospectus; (C) the Prospectus and any amended or supplemented
Prospectus; and (D) any document incorporated by reference in the Prospectus
(excluding exhibits thereto); and, if at any time when delivery of a prospectus
is required in connection with the Remarketing, (i) any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include any 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 (ii) for any other reason it shall otherwise be necessary
during such same period to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Securities Act or the Exchange Act, to notify the
Remarketing Agent and, upon its request, to file such document and to prepare
and furnish without charge to the Remarketing Agent and to any dealer in
securities as many copies as the Remarketing Agent may from time to time
reasonably request of an amended or supplemented Prospectus that will correct
such statement or omission or effect such compliance.
(g) Prior to filing with the Commission (A) any amendment to the
Registration Statement or supplement to the Prospectus (other than any amendment
or supplement resulting solely from the incorporation by reference of any report
under the Exchange Act) or (B) any Prospectus pursuant to Rule 424 under the
Securities Act, the Company shall furnish a copy thereof to the Remarketing
Agent and counsel to the Remarketing Agent; and shall not file any such
amendment or supplement that shall be reasonably disapproved by the Remarketing
Agent promptly after reasonable notice.
(h) As soon as practicable, but in any event not later than eighteen
months, after the effective date of the Registration Statement, the Company
shall make "generally available to its security holders" an "earnings statement"
of the Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the rules and regulations thereunder
(including, at the option of the Company, Rule 158 under the Securities Act).
The terms "generally available to its security holders" and "earnings statement"
shall have the meanings set forth in Rule 158 under the Securities Act.
(i) The Company shall take such action as the Remarketing Agent may
reasonably request in order to qualify the Remarketed Senior Notes for offer and
sale under the securities or "blue sky" laws of such jurisdictions as the
Remarketing Agent may reasonably request; provided that in no event shall the
Company be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction or to subject itself to
taxation or any other obligation in any jurisdiction in which it is not
otherwise subject.
(j) The Company shall furnish the Remarketing Agent with such information
and documents as the Remarketing Agent may reasonably request in connection with
the transactions contemplated hereby, and to make reasonably available to the
Remarketing Agent and any accountant, attorney or other advisor retained by the
Remarketing Agent such information that parties would customarily require in
connection with a due diligence investigation conducted in
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accordance with applicable securities laws and to cause the Company's officers,
directors, employees and accountants to participate in all such discussions and
to supply all such information reasonably requested by any such Person in
connection with such investigation.
Section 6. Payment of Expenses. The Company agrees to pay (a) all costs
incident to the preparation and printing of the Registration Statement, if any,
any Prospectus and any other Remarketing Materials and any amendments or
supplements thereto, (b) all costs of distributing the Registration Statement,
if any, any Prospectus and any other Remarketing Materials and any amendments or
supplements thereto, (c) any fees and expenses of qualifying the Remarketed
Senior Notes under the securities laws of the several jurisdictions as provided
in Section 5(i) and of preparing, printing and distributing a Blue Sky
Memorandum, if any (including the reasonable fees and expenses of counsel to the
Remarketing Agent), (d) all other costs and expenses incident to the performance
of the obligations of the Company hereunder and the Remarketing Agent hereunder
and (e) the reasonable fees and expenses of counsel to the Remarketing Agent in
connection with its duties hereunder.
Section 7. Conditions to the Remarketing Agent's Obligations. The
obligations of the Remarketing Agent hereunder shall be subject to the following
conditions:
(a) The representations and warranties of the Company contained herein
shall be true and correct in all material respects on and as of the applicable
Remarketing Date, except as disclosed in writing to the Remarketing Agent
pursuant to the preamble to Section 3, and the Company, the Purchase Contract
Agent and the Collateral Agent shall have performed in all material respects all
covenants and agreements contained herein or in the Purchase Contract Agreement
or Pledge Agreement to be performed on their part at or prior to such date.
(b) During the period commencing on a date prior to the Remarketing,
chosen by the Remarketing Agent in its reasonable discretion, until (and
including) the Remarketing Date, there shall not have occurred any of the
following: (i) Trading generally shall have been suspended or materially limited
on the New York Stock Exchange, (ii) trading of any securities of the Company
shall have been materially suspended or limited on the New York Stock Exchange,
(iii) a banking moratorium shall have been declared by either Federal or New
York State authorities, or (iv) there shall have occurred a material adverse
change in the financial markets, any escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or
war, if the effect of any such event specified in this clause (b) in the
judgment of the Remarketing Agent makes it impracticable or inadvisable to
proceed with the Remarketing or the delivery of the Remarketed Senior Notes on
the terms and in the manner contemplated in the Transaction Documents.
(c) The Prospectus, if any, shall have been filed with the Commission
pursuant to Rule 424(b) in the manner and within the time period required by
Rule 424(b) under the Securities Act; no stop order suspending the effectiveness
of the Registration Statement, any Rule 462(b) Registration Statement, or any
post-effective amendment to the Registration Statement shall be in effect and no
proceedings for such purpose shall have been instituted or threatened by the
Commission and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall
have been complied with.
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(d) The Company shall have furnished to the Remarketing Agent a
certificate, dated the applicable Remarketing Date, of the Chief Financial
Officer satisfactory to the Remarketing Agent stating that: (1) no order
suspending the effectiveness of the Registration Statement, if any, or
prohibiting the sale of the Remarketed Senior Notes is in effect, and no
proceedings for such purpose are pending before or, to the best knowledge of
such officer, threatened by the Commission; (2) the representations and
warranties of the Company in Section 3 are true and correct on and as of the
applicable Remarketing Date, except as disclosed in writing to the Remarketing
Agent pursuant to the preamble to Section 3, and the Company has performed in
all material respects all covenants and agreements contained herein to be
performed on its part at or prior to such Remarketing Date; and (3) the
Registration Statement, if any, as of its effective date, did not contain any
untrue statement of a material fact and did not omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading and the Prospectus or any other Remarketing Material did not, as of
the date of such Prospectus or such Remarketing Material, if any, contain any
untrue statement of material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) On the applicable Remarketing Date, the Remarketing Agent shall have
received a letter addressed to the Remarketing Agent and dated such date, in
form and substance satisfactory to the Remarketing Agent, from the Company's
independent accountants reasonably acceptable to the Remarketing Agent,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" with respect to the financial statements and
certain financial information of the Company and its consolidated subsidiaries
contained in the Remarketing Materials, if any.
(f) The General Counsel for the Company shall have furnished to the
Remarketing Agent its opinion, addressed to the Remarketing Agent and dated the
Remarketing Date, in form and substance reasonably satisfactory to the
Remarketing Agent addressing such matters as are set forth in such counsel's
opinion furnished pursuant to Section [ ] of the Underwriting Agreement, adapted
as necessary to relate to the securities being remarketed hereunder and to the
Remarketing Materials, if any, or to any changed circumstances or events
occurring subsequent to the date of this Agreement, such adaptations being
reasonably acceptable to counsel to the Remarketing Agent.
(g) Xxxxx Day, or such other counsel reasonably acceptable to the
Remarketing Agent, shall have furnished to the Remarketing Agent its written
opinion, as special counsel to the Company, addressed to the Remarketing Agent
and dated such Delivery Date, in form and substance satisfactory to the
Remarketing Agent in form and substance satisfactory to the Remarketing Agent as
set forth in Exhibit A to the Underwriting Agreement.
(h) [ ], or such other counsel reasonably acceptable to the
Remarketing Agent, shall have furnished to the Remarketing Agent its opinion, as
counsel to the Remarketing Agent, addressed to the Remarketing Agent and dated
the applicable Remarketing Date, in form and substance satisfactory to the
Remarketing Agent.
(i) During the period commencing on a date prior to the Remarketing,
chosen by the Remarketing Agent in its reasonable discretion, until (and
including) the Remarketing Date and
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prior to the applicable Remarketing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not indicate an
improvement, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(j) The Senior Notes shall not have been called for redemption following
the occurrence of a Special Event.
If any condition specified in this Section 7 is not satisfied when and as
required to be satisfied, this Agreement may be terminated by the Remarketing
Agent by notice to the Company at any time on or prior to the applicable
Remarketing Date, which termination shall be without liability on the part of
any party to any other party, except that Section 6, Section 8 and Section 9
shall at all times be effective and shall survive such termination.
Section 8. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Remarketing
Agent, its affiliates, their respective officers, directors, employees,
representatives and agents, and each person, if any, who controls the
Remarketing Agent within the meaning of the Securities Act or the Exchange Act,
from and against any loss, claim, damage, liability, joint or several, or any
action in respect thereof to which the Remarketing Agent or any such affiliate
officer, employee, representative, agent or controlling person may become
subject, insofar as such loss, claim, damage, liability or action arises out of,
or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Preliminary
Prospectus or the Prospectus, or in any amendment or supplement thereto, or (ii)
the omission or alleged omission to state in the Registration Statement, any
Preliminary Prospectus, the Prospectus or in any amendment or supplement
thereto, in any Remarketing Materials or any amendment or supplement thereto, or
in any Blue Sky Application, any material fact necessary to make the statements
therein not misleading, and shall reimburse the Remarketing Agent and each such
affiliate, officer, employee, representative, agent or controlling person
promptly upon demand for any legal or other expenses reasonably incurred by the
Remarketing Agent or
11
any such affiliate, officer, employee, representative agent or controlling
person in damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, any Preliminary Prospectus
or the Prospectus, or in any such amendment or supplement, or any other
Remarketing Materials (or any amendment or supplement thereto), in reliance upon
and in conformity with the written information furnished to the Company by or on
behalf of the Remarketing Agent concerning the Remarketing Agent specifically
for inclusion therein; and provided, further, that the Company shall not be
liable to the Remarketing Agent under the indemnity agreement in this subsection
(a) with respect to any Preliminary Prospectus to the extent that such loss,
claim, damaged, liability or action of the Remarketing Agent results from the
fact that the Remarketing Agent sold the Remarketed Senior Notes to a person as
to whom it shall be established that such sale was an initial resale by the
Remarketing Agent and there was not sent or given to such person, if required by
law to have been so sent or given, at or prior to the written confirmation of
the sale to such person, a copy of the Prospectus, if the Company had previously
furnished copies thereof pursuant to Section 5(f) and the loss, claim, damage or
liability of the Remarketing Agent results from an untrue statement or omission
of a material fact contained in the Preliminary Prospectus which was (i)
identified to the Remarketing Agent prior to the furnishing to the Remarketing
Agent of the corrected Prospectus and (ii) corrected in the Prospectus. The
foregoing indemnity agreement is in addition to any liability which the Company
may otherwise have to the Remarketing Agent or to any affiliate, officer,
employee, representative, agent or controlling person of the Remarketing Agent.
(b) The Remarketing Agent shall indemnify and hold harmless the Company,
its affiliates, their respective officers, directors, employees, representatives
and agents, and each person, if any, who controls the Company within the meaning
of the Securities Act or the Exchange Act from and against any loss, claim,
damage, liability or any action in respect thereof, to which the Company, or any
such affiliate, director, officer, employee, representative, agent or
controlling person may become subject, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue or alleged
untrue statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus (or any amendment or supplement thereto),
any Blue Sky Application, or any other Remarketing Materials (or any amendment
or supplement thereto), or (ii) the omission or alleged omission to state in the
Registration Statement, any Preliminary Prospectus, the Prospectus (or any
amendment or supplement thereto), any Blue Sky Application, or any other
Remarketing Materials (or any amendment or supplement thereto), any material
fact necessary to make the statements therein not misleading, but in each case
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 by the Remarketing Agent
specifically for inclusion therein; and shall reimburse the Company and any such
director, officer or controlling person promptly upon demand for any legal and
other expenses reasonably incurred by the Company or any such affiliate,
director, officer, employee, representative, agent or controlling person in
connection with investigating, defending, or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred. The
Company hereby acknowledges that the only information that the Remarketing Agent
has furnished to the Company expressly for use in the Registration Statement,
any Preliminary Prospectus, the
12
Prospectus, any Blue Sky Application or any other Remarketing Materials (or any
amendment or supplement thereto) is the information set forth in a certificate
to be provided by the Remarketing Agent on or prior to the Remarketing Date. The
foregoing indemnity agreement is in addition to any liabilities that each
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have had under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided, further, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under this Section 8. If any such claim
or action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such indemnifying
party's election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party in connection with the defense thereof unless the indemnified
party shall have employed separate counsel in accordance with the proviso to the
next preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel
(together with local counsel), approved by the indemnifying party (the
Remarketing Agent in the case of Section 8(b), representing the indemnified
parties who are parties to such action). No indemnifying party shall, (i)
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld) settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment of the plaintiff in any such action, the
13
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss of liability by reason of such settlement or judgment.
Section 9. Contribution. If the indemnification provided for in Section 8
is for any reason held to be unavailable or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Remarketing Agent, on the
other hand, from the Remarketing of the Remarketed Senior Notes pursuant to 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
hand, with respect to the statements or omissions or alleged statements or
alleged omissions that resulted in such loss, claim, damage, or liability (or
action in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and the Remarketing Agent, on the other hand, with respect to the Remarketing of
the Remarketed Senior Notes pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the Remarketing
of the Remarketed Senior Notes pursuant to this Agreement received by holders of
the Remarketed Senior Notes on the one hand, and the total Remarketing Fee
received by the Remarketing Agent, on the other hand, bear to the aggregate
Remarketing Price plus an additional Remarketing Fee paid by the Company which
is not included in the Remarketing Price of the Remarketed Senior Notes. The
relative fault of the Company, on the one hand, and the Remarketing Agent, on
the other hand, shall be determined by reference to whether the 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, on the one
hand, or the Remarketing Agent, on the other hand, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Remarketing Agent agree that it would not be just and
equitable if the amount of contributions pursuant to this Section 9 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to in
this Section 9 shall be deemed to include, for purposes of this Section 9, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim.
Notwithstanding the provisions of this Section 9, the Remarketing Agent
shall not be required to contribute any amount in excess of the amount by which
the fees received by it under Section 4 exceeds the amount of any damages which
the Remarketing Agent has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of
14
such fraudulent misrepresentation. For purposes of this Section 9, each officer
and employee of the Remarketing Agent and each person, if any, who controls the
Remarketing Agent within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Remarketing Agent, and each director of the Company, each officer of the Company
who signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the Company.
Section 10. Resignation and Removal of the Remarketing Agent. The
Remarketing Agent may resign and be discharged from its duties and obligations
hereunder, and the Company may remove the Remarketing Agent, by giving 30 days'
prior written notice, in the case of a resignation, to the Company, the Purchase
Contract Agent and the Depositary and, in the case of a removal, to the removed
Remarketing Agent, the Purchase Contract Agent and the Depositary; provided,
however, that no such resignation nor any such removal shall become effective
until the Company shall have appointed at least one nationally recognized
broker-dealer as successor Remarketing Agent and such successor Remarketing
Agent shall have entered into a with the Company and the
Purchase Contract Agent, in which it shall have agreed to conduct the
Remarketing in accordance with the Transaction Documents in all material
respects.
In any such case, the Company will use commercially reasonable efforts to
appoint a successor Remarketing Agent and enter into such a with such person as soon as reasonably practicable.
Section 11. Dealing in Securities. The Remarketing Agent, when acting as a
Remarketing Agent or in its individual or any other capacity, may, to the extent
permitted by law, buy, sell, hold and deal in any of the Remarketed Senior
Notes, Corporate Units, Treasury Units or any of the securities of the Company
(together, the "SECURITIES"). The Remarketing Agent may exercise any vote or
join in any action which any beneficial owner of such Securities may be entitled
to exercise or take pursuant to the Indenture with like effect as if it did not
act in any capacity hereunder. The Remarketing Agent, in its individual
capacity, either as principal or agent, may also engage in or have an interest
in any financial or other transaction with the Company as freely as if it did
not act in any capacity hereunder.
Section 12. Remarketing Agent's Performance; Duty of Care. The duties and
obligations of the Remarketing Agent shall be determined solely by the express
provisions of this Agreement and the Transaction Documents. No implied covenants
or obligations of or against the Remarketing Agent shall be read into this
Agreement or any of the Transaction Documents. In the absence of bad faith on
the part of the Remarketing Agent, the Remarketing Agent may conclusively rely
upon any document furnished to it, as to the truth of the statements expressed
in any of such documents. The Remarketing Agent shall be protected in acting
upon any document or communication reasonably believed by it to have been
signed, presented or made by the proper party or parties except as otherwise set
forth herein. The Remarketing Agent, acting under this Agreement, shall incur no
liability to the Company or to any holder of Remarketed Senior Notes in its
individual capacity or as Remarketing Agent for any action or failure to act, on
its part in connection with a Remarketing or otherwise, except if such liability
is judicially determined to have resulted from its failure to comply with the
material terms of this Agreement or the gross negligence or willful misconduct
on its part. The provisions of this
15
Section 12 shall survive the termination of this Agreement and shall survive the
resignation or removal of any Remarketing Agent pursuant to this Agreement.
Section 13. Termination. This Agreement shall automatically terminate (i)
as to the Remarketing Agent on the effective date of the resignation or removal
of the Remarketing Agent pursuant to Section 10 and (ii) on the earlier of (x)
any Special Event Redemption Date and (y) the Purchase Contract Settlement Date.
If this Agreement is terminated pursuant to any of the other provisions hereof,
except as otherwise provided herein, the Company shall not be under any
liability to the Remarketing Agent and the Remarketing Agent shall not be under
any liability to the Company, except that if this Agreement is terminated by the
Remarketing Agent because of any failure or refusal on the part of the Company
to comply with the terms or to fulfill any of the conditions of this Agreement,
the Company will reimburse the Remarketing Agent for all of its out-of-pocket
expenses (including the fees and disbursements of its counsel) reasonably
incurred by it. Section 8, Section 9 and Section 12 hereof shall survive the
termination of this Agreement or the resignation or removal of the Remarketing
Agent.
Section 14. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Remarketing Agent, shall be delivered or sent by mail, telex
or facsimile transmission to:
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to Xxxxxxxxx'x, Inc., 000 Xxxxxxxxxx Xxxxxxxxx, X.X. Xxx
00, Xxxxx, Xxxxx 00000 Telecopier No.: (000) 000-0000; Attention: General
Counsel; and
(c) if to the Purchase Contract Agent, shall be delivered or sent by mail,
telex or facsimile transmission to U.S. Bank Trust National Association, 000
Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Telecopier No.: (000) 000-0000; Attention:
Xxxxxxx X. Xxxxxxx.
Any such statements, requests, notices or agreements shall take effect at
the time of receipt thereof.
Section 15. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon each party hereto and its respective
successors. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons, except that (x) the representations, warranties,
indemnities and agreements of the Company contained in this Agreement shall also
be deemed to be for the benefit of the Remarketing Agent and the person or
persons, if any, who control the Remarketing Agent within the meaning of Section
15 of the Securities Act and (y) the indemnity agreement of the Remarketing
Agent contained in Section 8
16
of this Agreement shall be deemed to be for the benefit of the Company's
directors and officers who sign the Registration Statement, if any, and any
person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing contained in this Agreement is intended or shall be
construed to give any person, other than the persons referred to herein, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
Section 16. Survival. Notwithstanding Section 13, the respective
indemnities, representations, warranties and agreements of the Company and the
Remarketing Agent contained in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall survive any Remarketing and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any of them or any person controlling any of them.
Section 17. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of New York.
Section 18. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
Section 19. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
Section 20. Severability. If any provision of this Agreement shall be held
or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as
applied in any particular case in any or all jurisdictions because it conflicts
with any provisions of any constitution, statute, rule or public policy or for
any other reason, then, to the extent permitted by law, such circumstances shall
not have the effect of rendering the provision in question invalid, inoperative
or unenforceable in any other case, circumstance or jurisdiction, or of
rendering any other provision or provisions of this Agreement invalid,
inoperative or unenforceable to any extent whatsoever.
Section 21. Amendments. This Agreement may be amended by an instrument in
writing signed by the parties hereto. The Company agrees that it will not enter
into, cause or permit any amendment or modification of the Transaction Documents
or any other instruments or agreements relating to the Senior Notes or the
Corporate Units that would in any way adversely affect the rights, duties or
obligations of the Remarketing Agent, without the prior written consent of the
Remarketing Agent.
Section 22. Successors and Assigns. The rights and obligations of the
Company hereunder may not be assigned or delegated to any other Person without
the prior written consent of Banc of America. The rights and obligations of the
Remarketing Agent hereunder may not be assigned or delegated to any other Person
(other than an affiliate of the Remarketing Agent) without the prior written
consent of the Company.
If the foregoing correctly sets forth the agreement by and between the
Company, the Remarketing Agent and the Purchase Contract Agent, please indicate
your acceptance in the space provided for that purpose below.
17
SIGNATURES ON THE FOLLOWING PAGE
18
Very truly yours,
ALBERTSON'S, INC.
By:
-------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
[ ]
By:
-------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION
not individually but solely as Purchase Contract Agent
and as attorney-in-fact for the Holders of the Purchase Contracts
By:
-------------------------------
Name:
Title:
