FORM OF
, dated as of May [__], 1998 (the ""), between Cytec Industries Inc., a Delaware corporation (the
"Company"), and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx" and, in its capacity as the remarketing dealer hereunder,
the "Remarketing Dealer").
WHEREAS, the Company has issued $120,000,000 aggregate principal
amount of its [ ]% MandatOry Par Put Remarketed Securities SM due 2025 (the
"MOPPRS SM") pursuant to an indenture, dated as of March 15, 1998 (the
"Indenture"), between the Company and PNC Bank, National Association, as
trustee (the "Trustee"); and
WHEREAS, the MOPPRS are being sold initially pursuant to an
underwriting agreement, dated May 6, 1998 (the "Purchase Agreement"),
between the Company and the Underwriters named in Schedule I thereto; and
WHEREAS, the Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-3808) under the Securities Act of 1933, as amended (the "1933 Act"), in
connection with the offering of Debt Securities, including the MOPPRS,
which registration statement was declared effective by order of the
Commission on April 8, 1998, and has filed such amendments thereto and such
amended prospectuses as may have been required to the date hereof, and will
file such additional amendments thereto and such additional amended
prospectuses as may hereafter be required, and the Company has filed a
registration statement pursuant to Rule 462(b) under the 1933 Act which
registration statement became effective upon filing with the Commission;
and
WHEREAS, Xxxxxxx Xxxxx is prepared to act as the Remarketing Dealer
with respect to the remarketing of the MOPPRS on May [__], 2005 (the
"Remarketing Date") pursuant to the terms of, but subject to the conditions
set forth in, this Agreement;
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
Section 1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Indenture
(including the form of the MOPPRS).
Section 2. Representations and Warranties. (a) The Company represents
and warrants to the Remarketing Dealer as of the date hereof, the
Notification Date (as defined below), the Determination Date (as defined
below) and the Remarketing Date (each such date being hereinafter referred
to as a "Representation Date"), that (i) during the 12 months immediately
preceding the applicable Representation Date, it has made all the filings
with the Commission that it is required to make under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules and
regulations thereunder (the "1934 Act Regulations") (collectively, the
"1934 Act Documents"), (ii) each 1934 Act Document complies in all material
respects with the requirements of the 1934 Act and 1934 Act Regulations,
and each 1934 Act Document did not at the time of filing with the
Commission, and as of each Representation Date, as modified or superseded
by any subsequently filed 1934 Act Document on or prior to such
Representation Date, will not, include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (iii) the
applicable Remarketing Materials (as defined herein), as of each
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Representation Date after the date hereof, as modified or superseded by any
subsequently filed 1934 Act Document on or prior to such Representation
Date (or, if applicable, by any document filed pursuant to the 1933 Act and
the rules and regulations thereunder (the "1933 Act Regulations")), will
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(b) The Company further represents and warrants to the Remarketing
Dealer as of each Representation Date as follows:
(i) KPMG Peat Marwick LLP (and any successor accountants), who
have certified certain financial statements of the Company and its
subsidiaries, are independent public accountants as required by the
1933 Act and the 1933 Act Regulations.
(ii) The consolidated financial statements included or
incorporated by reference in the 1934 Act Documents, together with the
related schedules and notes, present fairly the consolidated financial
position of the Company and its subsidiaries as of the dates indicated
and the consolidated results of operations and the consolidated cash
flows of the Company and its subsidiaries for the periods specified;
such financial statements, except as described therein, have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved. The pro
forma financial statements and the related notes thereto, if any,
included or incorporated by reference in the 1934 Act Documents
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein.
(iii) Except as described in the 1934 Act Documents, since the
respective dates as of which information is given in the 1934 Act
Documents, there has not been (i) any increase in the long-term debt
of the Company and its consolidated subsidiaries in an amount in
excess of $10,000,000, other than indebtedness incurred to pay
obligations under the rate lock agreements of the Company described in
the 1934 Act Documents or (ii) except as set forth or contemplated in
the 1934 Act Documents, any material adverse change, or any
development or event likely to result in a prospective material
adverse change, in or affecting the general affairs, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(iv) The Company and each "significant subsidiary" of the Company
(as such term is defined in Rule 1-02 of Regulation S-X) (each, a
"Material Subsidiary" and, collectively, the "Material Subsidiaries")
have been duly incorporated and are validly existing as corporations
in good standing under the laws of the State of Delaware, with
corporate power and authority to own their properties and conduct
their business as described in the 1934 Act Documents and to execute
and deliver this Agreement, and have been duly qualified as foreign
corporations for the transaction of business and are in good standing
under the laws of each other jurisdiction in which they own or lease
properties or conduct any business so as to require such
qualification, except where failure to be so qualified would not
reasonably be expected to have a Material Adverse Effect.
(v) The Company and each of its Material Subsidiaries have good
title to all manufacturing plants or facilities (together with the
land upon which it is erected and fixtures comprising a part thereof)
located in the United Sates of America (excluding
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territories and possessions) the net book value (as defined in the
Indenture) of which exceeds 1.5% of Consolidated Net Tangible Assets
(as defined in the Indenture), except any such plant or facility which
is a pollution control or other facility financed by obligations
issued by a state or local governmental unit and described in Sections
141(a), 142(a)(5), 142(a)(6), 142(10) or 144(a) of the Internal
Revenue Code of 1986, as amended (or any successor provision thereof),
or which in the opinion of the Board of Directors of the Company is
not of material importance to the total business conducted by the
Company and its subsidiaries as a whole (each, a "Principal Property"
and collectively, the "Principal Properties"), in each case free and
clear of all liens, encumbrances and defects except such as are
described in the 1934 Act Documents or such as do not materially
affect the value of such Principal Property and do not interfere with
the use made of such Principal Property by the Company and its
Material Subsidiaries, except where such impairment or interference
would not reasonably be expected to have a Material Adverse Effect;
and the Principal Properties held under lease by the Company and the
Material Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made of such Principal Property by the Company
and the Material Subsidiaries except where such interference would not
reasonably be expected to have a Material Adverse Effect.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company.
(vii) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"), and is a legal, valid and
binding agreement of the Company enforceable in accordance with its
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and general principles of
equity.
(viii) The MOPPRS, when issued in accordance with this Agreement
and the Indenture, will have been duly authorized by the Company and
when executed and delivered by the Company will constitute legal,
valid and binding obligations of the Company enforceable in accordance
with their terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and general principles of
equity.
(ix) Neither the Company nor any of the Material Subsidiaries is
(i) in violation of its Certificate of Incorporation or By-laws or
(ii) in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be
bound, where such default would be reasonably likely to have a
Material Adverse Effect; and the execution, delivery and performance
of this Agreement and the Indenture, the issuance and sale of the
MOPPRS and the consummation of the transactions contemplated hereby
and thereby will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument of which the Company or any of the Material
Subsidiaries is a party or by which the Company or any of the Material
Subsidiaries is bound or to which any of the property or assets of the
Company or any of the Material Subsidiaries is subject, except where
such breach or violation would not reasonably be expected to have a
Material Adverse Effect, nor will such action result in any violation
of the provisions of the Certificate of Incorporation or By-laws of
the Company or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of the Material
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Subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue
and sale of the MOPPRS or the consummation by the Company of the
transactions contemplated by this Agreement, except the registration
under the Act of the MOPPRS, qualification of the Indenture under the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state or
foreign securities or Blue Sky laws in connection with the purchase
and distribution of the MOPPRS by the Underwriters.
(x) Other than as set forth or contemplated in the 1934 Act
Documents, there are no legal or governmental proceedings pending to
which the Company or any of the Material Subsidiaries is a party or of
which any property of the Company or any Material Subsidiaries is the
subject which, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect; and, to the best of the
Company's knowledge, there are no proceedings threatened or
contemplated by governmental authorities or threatened by others which
would reasonably be expected to have a Material Adverse Effect.
(xi) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in connection
with the remarketing of the MOPPRS hereunder or the consummation of
the transactions contemplated by this Agreement or for the due
execution, delivery or performance of the Indenture by the Company,
except such as have been already obtained, and except as may be
required under the 1933 Act or the 1933 Act Regulations or state
securities or Blue Sky laws and except for the qualification of the
Indenture under the Trust Indenture Act.
(xii) The Company is not and, after giving effect to the offering
and sale of the MOPPRS, will not be an "investment company" or any
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xiii) The MOPPRS are rated BBB by Standard & Poors Ratings
Services Group and Baa2 by Xxxxx'x Investors Service, Inc. or such
other rating as to which the Company shall have most recently notified
the Remarketing Dealer pursuant to Section 3(a) hereof.
(xiv) Other than as set forth or contemplated in the 1934 Act
Documents, each of the Company and the Material Subsidiaries are in
material compliance with all applicable federal, state and local
environmental laws and regulations, including those applicable to
emissions to the environment, waste management and waste disposal
(collectively, "Environmental Laws"), except for such noncompliance as
would not, to the best knowledge of the Company, reasonably be
expected to have a Material Adverse Effect.
(xv) Other than as set forth or contemplated in the 1934 Act
Documents, (i) there is no claim under any Environmental Law,
including common law, pending or, to the best knowledge of the
Company, threatened or contemplated against the Company or the
Material Subsidiaries (an "Environmental Claim") which would
reasonably be expected to have a Material Adverse Effect and (ii) to
the knowledge of the Company, under applicable law, there are no past
or present actions, activities, circumstances, events or incidents,
including releases of any material into the environment, that could
form the basis of any Environmental Claim against the Company or the
Material Subsidiaries which would
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reasonably be expected to have a Material Adverse Effect.
References in the foregoing representations and warranties to the 1934
Act Documents shall be deemed to refer to the Registration Statement (as
defined in Section 3(b) below) and Prospectus (as defined in Section 3(b)
below), in each case including the documents incorporated by reference
therein, if such are required pursuant to Section 3(e) hereof.
(c) Additional Certifications. Any certificate signed by any director
or officer of the Company and delivered to the Remarketing Dealer or to
counsel for the Remarketing Dealer in connection with the remarketing of
the MOPPRS shall be deemed a representation and warranty by the Company to
the Remarketing Dealer as to the matters covered thereby.
Section 3. Covenants of the Company. The Company covenants with the
Remarketing Dealer as follows:
(a) During the twelve-month period immediately preceding the
Remarketing Date, the Company will provide prompt notice by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), to the Remarketing Dealer of (i) any notification or
announcement by a "nationally recognized statistical rating organization"
(as defined by the Commission for purposes of Rule 436(g)(2) under the 0000
Xxx) with regard to the ratings of any securities of the Company,
including, without limitation, notification or announcement of a downgrade
in or withdrawal of the rating of any security of the Company or
notification or announcement of the placement of any rating of any
securities of the Company under surveillance or review, including placement
on CreditWatch or on Watch List with negative implications, or (ii) the
occurrence at any time of any event set forth in Section 8(b) of this
Agreement.
(b) During the twelve-month period immediately preceding the
Remarketing Date, the Company will furnish to the Remarketing Dealer:
(i) if required as provided in paragraph (e) below for purposes
of the remarketing, a then currently effective registration statement
under the 1933 Act and a then current prospectus relating to the
MOPPRS to be used by the Remarketing Dealer for remarketing and resale
of the MOPPRS (such registration statement (whether consisting of the
registration statement relating to the initial issuance of the MOPPRS,
or any amendment thereto or a new registration statement) and any
amendments thereto, including any such prospectus (whether consisting
of the prospectus relating to the initial issuance of the MOPPRS or
any amendment or supplement thereto or a new prospectus) relating to
the MOPPRS constituting a part thereof, and all documents incorporated
therein by reference, as from time to time amended or supplemented
pursuant to the 1934 Act, the 1933 Act, or otherwise, are referred to
herein as the "Registration Statement" and the "Prospectus,"
respectively, except that if any revised prospectus shall be provided
to the Remarketing Dealer by the Company for use in connection with
the remarketing of the MOPPRS which differs from the Prospectus on
file at the Commission at the time the Registration Statement becomes
effective, the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the
Remarketing Dealer for such use);
(ii) each 1934 Act Document filed after the date hereof; and
(iii) in connection with the remarketing of MOPPRS, such other
information as the Remarketing Dealer may reasonably request from time
to time.
The Company agrees to provide the Remarketing Dealer with as many
copies of the
6
foregoing written materials and other Company approved information as the
Remarketing Dealer may reasonably request for use in connection with the
remarketing of MOPPRS and consents to the use thereof for such purpose.
(c) During the twelve-month period immediately preceding the
Remarketing Date, if, at any time during which the Remarketing Dealer would
be obligated to take any action under this Agreement, any event or
condition known to the Company relating to or affecting the Company, any
subsidiary thereof or the MOPPRS shall occur which could reasonably be
expected to cause any of the reports, documents, materials or information
referred to in paragraph (b) above or any document incorporated therein by
reference (collectively, the "Remarketing Materials") to contain an untrue
statement of a material fact or omit to state a material fact, the Company
shall promptly notify the Remarketing Dealer in writing of the
circumstances and details of such event or condition.
(d) So long as the MOPPRS are outstanding, the Company will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(e) The Company will comply with the 1933 Act and the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and
the rules and regulations of the Commission thereunder so as to permit the
completion of the remarketing of the MOPPRS on the Remarketing Date as
freely transferable securities, as contemplated in this Agreement and in
the prospectus relating to the initial issuance of the MOPPRS. In
furtherance of the foregoing, if it shall be necessary, in the opinion of
counsel for the Remarketing Dealer or for the Company, to have a
Registration Statement and a Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations and the
Commission's interpretations of the 1933 Act and the 1933 Act Regulations,
or if at any time when a Prospectus is required by the 1933 Act to be
delivered in connection with remarketing and resales of the MOPPRS, any
event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Remarketing Dealer or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, the
Company, at its expense, will promptly (i) prepare and file with the
Commission such Registration Statement and Prospectus, or such amendment or
supplement as may be necessary to correct such statement or omission as
referred to above or to make the Registration Statement or the Prospectus
comply with such requirements as referred to above, (ii) furnish to the
Remarketing Dealer such number of copies of such Registration Statement and
Prospectus or such amendment, supplement or other document as the
Remarketing Dealer may reasonably request and (iii) furnish to the
Remarketing Dealer an officers' certificate, an opinion (including a
statement as to the absence of material misstatements in or omissions from
the Registration Statement and Prospectus, as amended or supplemented) of
counsel for the Company satisfactory to the Remarketing Dealer and a
"comfort letter" from the Company's independent accountants, in each case
in form and substance satisfactory to the Remarketing Dealer, of the same
tenor as the officers' certificate, opinion and comfort letter,
respectively, delivered pursuant to the Purchase Agreement, but modified to
relate to the Registration Statement and Prospectus as amended or
supplemented to the date thereof.
(f) The Company agrees that neither it nor any of its subsidiaries or
affiliates shall defease, purchase or otherwise acquire, or enter into any
agreement to defease, purchase or otherwise acquire, any of the MOPPRS
prior to the remarketing thereof by the Remarketing Dealer, other than (i)
at any time prior to the Remarketing Dealer's election on the Notification
Date, to remarket the MOPPRS, in accordance with Sections 11(b), 11(d) and
11(e) of this Agreement, and (ii) at any time after the Remarketing
Dealer's election on the Notification Date to remarket the
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MOPPRS, pursuant to Section 4(g) or 4(h) of this Agreement.
(g) Notwithstanding any provision to the contrary set forth in the
Indenture, the Company shall (i) use its best efforts to maintain the
MOPPRS in book-entry form with The Depository Trust Company ("DTC") or any
successor thereto and to appoint a successor depositary to the extent
necessary to maintain the MOPPRS in book-entry form, and (ii) waive any
discretionary right it otherwise has under the Indenture to cause the
MOPPRS to be issued in certificated form.
(h) To the extent that any Registration Statement and Prospectus are
required as contemplated in paragraph (e) above, the Company will comply
with covenants of the same tenor as those set forth in the Purchase
Agreement, but modified to relate to the Registration Statement and
Prospectus.
Section 4. Appointment and Obligations of the Remarketing Dealer. (a)
Unless this Agreement is otherwise terminated in accordance with Section 11
hereof, in accordance with the terms, but subject to the conditions, of
this Agreement, the Company hereby appoints Xxxxxxx Xxxxx, and Xxxxxxx
Xxxxx hereby accepts such appointment, as the exclusive Remarketing Dealer
with respect to $120,000,000 aggregate principal amount of MOPPRS, subject
further to repurchase of the MOPPRS in accordance with clause (g) of this
section or redemption of the MOPPRS in accordance with clause (h) of this
section.
(b) It is expressly understood and agreed by the parties hereto that
the obligations of the Remarketing Dealer hereunder with respect to the
MOPPRS to be remarketed on the Remarketing Date are conditioned on (i) the
issuance and delivery of such MOPPRS pursuant to the terms and conditions
of the Purchase Agreement and (ii) the Remarketing Dealer's election on the
Notification Date to purchase the MOPPRS for remarketing on the Remarketing
Date. It is further expressly understood and agreed by and between the
parties hereto that, if the Remarketing Dealer has elected to remarket the
MOPPRS pursuant to clause (c) below, the Remarketing Dealer shall not be
obligated to set the Interest Rate to Maturity on any MOPPRS, to remarket
any MOPPRS or to perform any of the other duties set forth herein at any
time after the Notification Date if (i) any of the conditions set forth in
clause (a) of Section 8 hereof shall not have been fully and completely met
to the satisfaction of the Remarketing Dealer, or (ii)(A) any of the events
set forth in clause (b)(ii), (v) or (viii) of Section 8 hereof shall have
occurred at any time and (B) any of the events set forth in clause (b)(i),
(iii), (iv), (vi) or (vii) shall have occurred subsequent to the
Remarketing Dealer's election on the Notification Date to remarket the
MOPPRS.
(c) On a Business Day not later than five Business Days prior to the
Remarketing Date, the Remarketing Dealer shall notify the Company and the
Trustee as to whether it elects to purchase the MOPPRS on the Remarketing
Date (the "Notification Date"). If, and only if, the Remarketing Dealer so
elects, the MOPPRS shall be subject to mandatory tender to the Remarketing
Dealer for remarketing on the Remarketing Date, subject to the conditions
described herein.
(d) Subject to the Remarketing Dealer's election to remarket the
MOPPRS as provided in clause (c) above, the Interest Rate to Maturity shall
be determined by the Remarketing Dealer by 3:30 p.m., New York City time,
on the third Business Day preceding the Remarketing Date (the
"Determination Date") to the nearest one hundred-thousandth (0.00001) of
one percent per annum, and will be equal to the sum of ___% (the "Base
Rate") plus the Applicable Spread (as defined below), which will be based
on the Dollar Price (as defined below) of the MOPPRS.
The "Applicable Spread" will be the lowest bid indication, expressed
as a spread (in the form of a percentage or in basis points) above the Base
Rate, obtained by the Remarketing Dealer on the
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Determination Date from the bids quoted by five Reference Corporate Dealers
(as defined below) for the full aggregate principal amount of the MOPPRS at
the Dollar Price, but assuming (i) an issue date equal to the Remarketing
Date, with settlement on such date without accrued interest, (ii) a
maturity date equal to the Stated Maturity Date of the MOPPRS, and (iii) a
stated annual interest rate, payable semiannually on each Interest Payment
Date for the MOPPRS, equal to the Base Rate plus the spread bid by the
applicable Reference Corporate Dealer. If fewer than five Reference
Corporate Dealers bid as described above, then the Applicable Spread shall
be the lowest of such bid indications obtained as described above. The
Interest Rate to Maturity announced by the Remarketing Dealer, absent
manifest error, shall be binding and conclusive upon the Beneficial Owners
and Holders of the MOPPRS, the Company and the Trustee.
"Comparable Treasury Issues" means the United States Treasury security
or securities selected by the Remarketing Dealer as having an actual or
interpolated maturity or maturities of thirty years.
"Comparable Treasury Price" means, with respect to the Remarketing
Date, (a) the offer prices for the Comparable Treasury Issues (expressed in
each case as a percentage of its principal amount) on the Determination
Date, as set forth on "Telerate Page 500" (or such other page as may
replace Telerate Page 500), or (b) if such page (or any successor page) is
not displayed or does not contain such offer prices on the Determination
Date, (i) the average of the Reference Treasury Dealer Quotations for the
Remarketing Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (ii) if the Remarketing Dealer obtains fewer
than four such Reference Treasury Dealer Quotations, the average of all
such Reference Treasury Dealer Quotations. "Telerate Page 500" means the
display designated as "Telerate Page 500" on Dow Xxxxx Markets Limited (or
such other page as may replace Telerate Page 500 on such service) or such
other service displaying the offer prices specified in (a) above as may
replace Dow Xxxxx Markets Limited.
"Dollar Price" means, with respect to the MOPPRS, the present value
determined by the Remarketing Dealer, as of the Remarketing Date, of the
Remaining Scheduled Payments (as defined below) discounted to the
Remarketing Date, on a semiannual basis (assuming a 360-day year consisting
of twelve 30-day months), at the Treasury Rate (as defined below).
"Reference Corporate Dealer" means each of the Remarketing Dealer and
four other leading dealers of publicly traded debt securities of the
Company in the City of New York to be chosen by the Company (with the
consent of the Remarketing Dealer, which consent shall not be unreasonably
withheld), and their respective successors.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and the Remarketing Date, the offer prices for
the Comparable Treasury Issues (expressed in each case as a percentage of
its principal amount) quoted to the Remarketing Dealer by such Reference
Treasury Dealer by 3:30 p.m., New York City time, on the Determination
Date.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, Xxxxxx Brothers Inc., Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx & Co.
Incorporated, Salomon Brothers Inc and SBC Warburg Dillon Read Inc. and
their respective successors; provided, however, that if any of the
foregoing or their affiliates shall cease to be a primary U.S. Government
securities dealer in The City of New York (a "Primary Treasury Dealer"),
the Remarketing Dealer shall substitute therefor another Primary Treasury
Dealer.
"Remaining Scheduled Payments" means, with respect to the MOPPRS, the
remaining scheduled payments of the principal thereof and interest thereon,
calculated at the Base Rate only,
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that would be due after the Remarketing Date to and including the Stated
Maturity Date; provided, however, that if the Remarketing Date is not an
Interest Payment Date with respect to the MOPPRS, the amount of the next
succeeding scheduled interest payment thereon, calculated at the Base Rate
only, will be reduced by the amount of interest accrued thereon, calculated
at the Base Rate only, to the Remarketing Date.
"Treasury Rate" means, with respect to the Remarketing Date, the rate
per annum equal to the semi-annual equivalent yield to maturity or
interpolated (on a day count basis) yield to maturity of the Comparable
Treasury Issues (as defined below), assuming a price for the Comparable
Treasury Issues (expressed as a percentage of its principal amount), equal
to the Comparable Treasury Price (as defined below) for the Remarketing
Date.
(e) Subject to the Remarketing Dealer's election to remarket the
MOPPRS as provided in clause (c) above, the Remarketing Dealer shall notify
the Company, the Trustee and DTC by telephone, confirmed in writing (which
may include facsimile or other electronic transmission), by 4:00 p.m., New
York City time, on the Determination Date of the Interest Rate to Maturity
applicable to the MOPPRS effective from and including the Remarketing Date.
(f) In the event that the MOPPRS are remarketed as provided herein,
the Remarketing Dealer shall make, or cause the Trustee to make, payment to
the DTC Participant of each tendering Beneficial Owner of MOPPRS subject to
remarketing, by book entry through DTC by the close of business on the
Remarketing Date against delivery through DTC of such Beneficial Owner's
tendered MOPPRS, of 100% of the principal amount of the tendered MOPPRS
that have been purchased for remarketing by the Remarketing Dealer. The
Company shall make, or cause the Trustee to make, payment of interest to
each Beneficial Owner of MOPPRS due on the Remarketing Date by book entry
through DTC by the close of business on the Remarketing Date.
(g) In the event that (i) the Remarketing Dealer for any reason does
not notify the Company of the Interest Rate to Maturity by 4:00 p.m., New
York City time, on the Determination Date, or (ii) prior to the Remarketing
Date, the Remarketing Dealer has resigned and no successor has been
appointed on or before the Determination Date, or (iii) the Remarketing
Dealer has terminated this Agreement pursuant to Section 8 or Section 11
hereof at any time after the Remarketing Dealer elects on the Notification
Date to remarket the MOPPRS, or (iv) the Remarketing Dealer for any reason
does not elect, by notice to the Company and the Trustee not later than the
Notification Date to purchase the MOPPRS for remarketing on the Remarketing
Date, or (v) the Remarketing Dealer for any reason does not purchase all
tendered MOPPRS on the Remarketing Date, the Company shall repurchase the
MOPPRS as a whole on the Remarketing Date at a price equal to 100% of the
principal amount of the MOPPRS plus all accrued and unpaid interest, if
any, on the MOPPRS to the Remarketing Date; provided, however, that any
such repurchase of the MOPPRS by the Company pursuant to clause (i) or (v)
above shall not constitute a waiver of any claim for breach of this
Agreement that it may have against the Remarketing Dealer for acts or
omissions occurring prior to such repurchase. In any such case, payment
will be made by the Company through the Trustee to the DTC Participant of
each tendering Beneficial Owner of MOPPRS, by book-entry through DTC by the
close of business on the Remarketing Date against delivery through DTC of
such Beneficial Owner's tendered MOPPRS.
(h) If the Remarketing Dealer elects to remarket the MOPPRS as
provided in clause (c) above, then not later than the Business Day
immediately preceding the Determination Date, the Company shall notify the
Remarketing Dealer and the Trustee if the Company irrevocably elects to
exercise its right to redeem the MOPPRS, in whole but not in part, from the
Remarketing Dealer on the Remarketing Date at the Optional Redemption
Price. The "Optional Redemption Price" shall
10
be the greater of (i) 100% of the principal amount of the MOPPRS and (ii)
the sum of the present values of the Remaining Scheduled Payments thereon,
as determined by the Remarketing Dealer, discounted to the Remarketing Date
on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate, plus in either case accrued and unpaid
interest from the Remarketing Date on the principal amount being redeemed
to the date of redemption. If the Company elects to redeem the MOPPRS, it
shall pay to the Remarketing Dealer the Optional Redemption Price therefor
in same-day funds by wire transfer to an account designated by the
Remarketing Dealer on the Remarketing Date.
(i) The Remarketing Dealer may, in accordance with the terms of the
Indenture, modify the tender and settlement procedures set forth in the
Indenture in order to facilitate the tender and settlement process.
(j) The tender and settlement procedures described above, including
provisions for payment by purchasers of MOPPRS in the remarketing or for
payment to selling Beneficial Owners of tendered MOPPRS, may be modified to
the extent required by DTC or, if agreed to by the Remarketing Dealer in
accordance with Section 8(b)(viii) of this Agreement, to the extent
required to facilitate the tender and remarketing of MOPPRS in certificated
form, if the book-entry system is no longer available for the MOPPRS at the
time of the remarketing.
Section 5. Fees and Expenses. Subject to Section 11 of this Agreement,
for its services in performing its duties set forth herein, the Remarketing
Dealer will not receive any fees or reimbursement of expenses from the
Company.
Section 6. Resignation of the Remarketing Dealer. The Remarketing
Dealer may resign and be discharged from its duties and obligations
hereunder at any time, such resignation to be effective 10 days after
delivery of a written notice to the Company and the Trustee of such
resignation. The Remarketing Dealer also may resign and be discharged from
its duties and obligations hereunder at any time, such resignation to be
effective immediately, upon termination of this Agreement in accordance
with Section 11(b) hereof. It shall be the sole responsibility of the
Company to appoint a successor Remarketing Dealer.
Section 7. Dealing in the MOPPRS; Purchase of MOPPRS by the Company.
(a) Xxxxxxx Xxxxx, when acting as the Remarketing Dealer or in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold and deal in any of the MOPPRS. Xxxxxxx Xxxxx, as Holder or
Beneficial Owner of the MOPPRS, may exercise any vote or join as a Holder
or Beneficial Owner, as the case may be, in any action which any Holder or
Beneficial Owner of MOPPRS may be entitled to exercise or take pursuant to
the Indenture with like effect as if it did not act in any capacity
hereunder. The Remarketing Dealer, in its capacity either as principal or
agent, may also engage in or have an interest in any financial or other
transaction with the Company as freely as if it did not act in any capacity
hereunder.
(b) The Company may purchase MOPPRS in the remarketing, provided that
the Interest Rate to Maturity established with respect to MOPPRS in the
remarketing is not different from the Interest Rate to Maturity that would
have been established if the Company had not purchased such MOPPRS.
Section 8. Conditions to Remarketing Dealer's Obligations. The
obligations of the Remarketing Dealer under this Agreement have been
undertaken in reliance on, and shall be subject to, (a) the due performance
by the Company of its obligations and agreements as set forth in this
Agreement and the accuracy of the representations and warranties in this
Agreement and any certificate delivered pursuant hereto, and (b) the
further condition that (I) none of the events set
11
forth in clauses (ii), (v), (viii) below shall have occurred at any time
and (II) none of the events set forth in clauses (i), (iii), (iv), (vi) or
(vii) below shall have occurred subsequent to the Remarketing Dealer's
election on the Notification Date to remarket the MOPPRS:
(i) the rating of any securities of the Company shall have been
down-graded or put under surveillance or review, including being put
on CreditWatch or Watch List with negative implications, or withdrawn
by a nationally recognized statistical rating organization;
(ii) without the prior written consent of the Remarketing Dealer,
the Indenture (including the MOPPRS) shall have been amended in any
manner, or otherwise contain any provision not contained therein as of
the date hereof, that in either case in the judgment of the
Remarketing Dealer materially changes the nature of the MOPPRS or the
remarketing procedures (it being understood that, notwithstanding the
provisions of this clause (ii), the Company shall not be prohibited
from amending the Indenture);
(iii) trading in any securities of the Company shall have been
suspended or materially limited by the Commission or the New York
Stock Exchange, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or in the Nasdaq National Market shall
have been suspended or materially limited, or minimum or maximum
prices for trading shall have been fixed, or maximum ranges for prices
shall have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority, or if a banking
moratorium shall have been declared by either Federal or New York
authorities;
(iv) there shall have occurred any material adverse change in the
financial markets in the United States or the international financial
markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a
prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to
make it, in the judgment of the Remarketing Dealer, impracticable to
remarket the MOPPRS or to enforce contracts for the sale of the
MOPPRS;
(v) an Event of Default (as defined in the Indenture), or any
event which, with the giving of notice or passage of time, or both,
would constitute an Event of Default, with respect to the MOPPRS shall
have occurred and be continuing;
(vi) a material adverse change, or any development or event
(whether taken on its own or in combination with other adverse events
arising out of the same circumstances occurring prior to the
Notification Date) likely to result in a prospective material adverse
change, in the condition, financial or otherwise, or in the earnings
or business affairs of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business, shall have occurred;
(vii) if a Prospectus is required under the 1933 Act to be
delivered in connection with the remarketing of the MOPPRS, the
Company shall fail to furnish to the Remarketing Dealer on the
Remarketing Date the officers' certificate, opinion and comfort letter
referred to in Section 3(e) of this Agreement and such other documents
and opinions as counsel for the Remarketing Dealer may reasonably
require for the purpose of enabling such counsel to pass upon the sale
of MOPPRS in the remarketing as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of
any of the representa tions and warranties, or the fulfillment of any
of the conditions, herein contained; or
12
(viii) the MOPPRS are not maintained in book-entry form with DTC
or any successor thereto; provided, that the Remarketing Dealer, in
its sole discretion and subject to receipt of an opinion of counsel
for the Company reasonably satisfactory to the Remarketing Dealer, may
waive the foregoing condition if in the Remarketing Dealer's judgment
the Indenture and the MOPPRS can be amended, and they are amended, so
as to permit the remarketing of the MOPPRS in certificated form and
otherwise as contemplated herein;
and the Remarketing Dealer shall have received on the Remarketing Date a
certificate of the chief executive officer and of the chief financial
officer of the Company, dated as of the Remarketing Date, to the effect
that (i) the representations and warranties in this Agreement are true and
correct with the same force and effect as though expressly made at and as
of the Remarketing Date, (ii) the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to the Remarketing Date and (iii) none of the events specified in the
preceding clause (b) has occurred.
(c) In furtherance of the foregoing, the effectiveness of the
Remarketing Dealer's election on the Notification Date to remarket the
MOPPRS shall be subject to the condition that the Remarketing Dealer shall
have received a certificate of the chief executive officer and of the chief
financial officer of the Company, dated as of the Notification Date, to the
effect that (i) the Company has, prior to the Remarketing Dealer's election
on the Notification Date to remarket the MOPPRS, provided the Remarketing
Dealer with notice of all events as required under Section 3(a) of this
Agreement, (ii) the representations and warranties in this Agreement are
true and correct at and as of the Notification Date and (iii) the Company
has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Notification Date. Such
certificate shall be delivered by the Company to the Remarketing Dealer as
soon as practicable following notification by the Remarketing Dealer to the
Company on the Notification Date of its election to remarket the MOPPRS and
in any event prior to the Determination Date.
In the event of the failure of any of the foregoing conditions, the
Remarketing Dealer may terminate its obligations under this Agreement as
provided in Section 11.
Section 9. Indemnification. (a) The Company agrees to indemnify and
hold harmless the Remarketing Dealer and its officers, directors and
employees and each person, if any, who controls the Remarketing Dealer
within the meaning of Section 20 of the 1934 Act as follows:
(i) against any loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of, (A) the failure to have an
effective Registration Statement under the 1933 Act relating to the
MOPPRS, if required, or the failure to satisfy the prospectus delivery
requirements of the 1933 Act because the Company failed to provide the
Remarketing Dealer with a Prospectus for delivery, or (B) any untrue
statement or alleged untrue statement of a material fact contained in
any of the Remarketing Materials (including any incorporated
documents), or (C) the omission or alleged omission therefrom of a
material fact necessary to make the statements therein, in the light
of the circumstances in which they were made, not misleading, or (D)
any violation by the Company of, or any failure by the Company to
perform any of its obligations under, this Agreement, or (E) the acts
or omissions of the Remarketing Dealer in connection with its duties
and obligations to determine the Interest Rate to Maturity hereunder
except that are finally judicially determined to be due to its gross
negligence or willful misconduct;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or
13
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever arising out of, or
based upon, any of items (A) through (E) in clause (i) above; provided
that (subject to clause (d) below) such settlement is effected with
the written consent of the Company, which consent shall not be
unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Remarketing Dealer), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever arising out of, or based upon, any
of items (A) through (E) in clause (i) above to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that the foregoing indemnity shall not apply to any
losses, liabilities, claims, damages and expenses to the extent arising out
of any untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by the Remarketing Dealer
expressly for use in the Remarketing Materials.
(b) The Remarketing Dealer agrees to indemnify and hold harmless the
Company, its directors and each of its officers who signed the Registration
Statement, from and against any loss, liability, claim, damage and expense,
as incurred, but only with respect to untrue statements or omissions made
in the Remarketing Materials in reliance upon and in conformity with
information furnished to the Company in writing by the Remarketing Dealer
expressly for use in such Remarketing Materials. The indemnity agreement in
this paragraph shall extend upon the same terms and conditions to each
person, if any, who controls the Company within the meaning of Section 20
of the 1934 Act.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In
the case of parties indemnified pursuant to clause (a) above, counsel to
the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in the
case of parties indemnified pursuant to clause (b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 9 or Section 10 hereof (whether or not
the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission or fault, culpability or a failure to act
by or on behalf of any indemnified party.
(d) The indemnity agreements contained in this Section 9 shall remain
operative and in full force and effect, regardless of any investigation
made by or on behalf of the Remarketing
14
Dealer, and shall survive the termination or cancellation of this Agreement
and the remarketing of any MOPPRS hereunder.
Section 10. Contribution. If the indemnification provided for in
Section 9 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities,
claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Remarketing Dealer
on the other hand from the remarketing of the MOPPRS pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Remarketing Dealer on the
other hand in connection with the acts, failures to act, statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Remarketing Dealer on the other hand in connection with the remarketing of
the MOPPRS pursuant to this Agreement shall be deemed to be in the same
respective proportions as (i) the aggregate principal amount of the MOPPRS,
and (ii) the aggregate positive difference, if any, between the price at
which the MOPPRS are sold by the Remarketing Dealer in the remarketing and
the price paid by the Remarketing Dealer for the MOPPRS tendered on the
Remarketing Date.
The relative fault of the Company on the one hand and the Remarketing
Dealer on the other hand shall be determined by reference to, among other
things, the responsibility hereunder of the applicable party for any act or
failure to act relating to the losses, liabilities, claims, damages or
expenses incurred or, in the case of any losses, liabilities, claims,
damages or expenses arising out of any untrue or alleged untrue statement
of a material fact contained in any of the Remarketing Materials or the
omission or alleged omission to state a material fact therefrom, whether
any such untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information
supplied by the Company or by the Remarketing Dealer and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Remarketing Dealer agree that it would not be just
and equitable if contribution pursuant to this Section 10 were determined
by pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
Section 10. The aggregate amount of losses, liabilities, claims, damages
and expenses incurred by an indemnified party and referred to above in this
Section 10 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing
or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such act or failure to act or untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 10, the Remarketing
Dealer shall not be required to contribute any amount in excess of the
amount by which the total price at which the MOPPRS remarketed by it and
resold to the public were sold to the public exceeds the amount of any
damages which the Remarketing Dealer has otherwise been required to pay by
reason of any act or failure to act for which it is responsible hereunder
or any untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the
15
1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For purposes of this Section 10, each person, if any, who controls the
Remarketing Dealer within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as
the Remarketing Dealer, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company.
Section 11. Termination of . (a) This Agreement
shall terminate as to the Remarketing Dealer on the effective date of the
resignation of the Remarketing Dealer pursuant to Section 6 hereof or the
repurchase of the MOPPRS by the Company pursuant to Section 4(g) hereof or
the redemption of the MOPPRS by the Company pursuant to Section 4(h)
hereof.
(b) In addition, the Remarketing Dealer may terminate all of its
obligations under this Agreement immediately by notifying the Company and
the Trustee of its election to do so, at any time on or before the
Remarketing Date, in the event that: (i) any of the conditions referred to
or set forth in Section 8(a) hereof have not been met or satisfied in full,
(ii)(A) any of the events set forth in Section 8(b)(ii), (v) or (viii)
shall have occurred at any time or (B)(I) with respect to any period prior
to the Remarketing Dealer's election on the Notification Date to remarket
the MOPPRS, any of the events set forth in Section 8(b)(i), (iii), (iv),
(vi) and (vii) shall have occurred at any time and (II) with respect to the
period after the Remarketing Dealer's election on the Notification Date to
remarket the MOPPRS, any of the events set forth in Section 8(b)(i), (iii),
(iv), (vi) and (vii) shall have occurred at any time after the Notification
Date, (iii) the Remarketing Dealer determines, in its sole discretion,
after consultation with the Company, that it shall not have received all of
the information, whether or not specifically referenced herein, necessary
to fulfill its obligations under this Agreement or (iv) the Company effects
a legal defeasance or covenant defeasance of the MOPPRS pursuant to
Sections 8.01(b)(i) or 8.01(b)(ii), respectively, of the Indenture.
(c) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party,
except that, in the case of termination pursuant to Section 11(b) of this
Agreement, the Company shall reimburse the Remarketing Dealer for all of
its out-of-pocket expenses, including the reasonable fees and disbursements
of counsel for the Remarketing Dealer, and except further as set forth in
Section 11(e) below. Sections 1, 9, 10, 11(d) and 11(e) shall survive such
termination and remain in full force and effect.
(d) In addition, in connection with any purchase by the Company or any
of its affiliates or subsidiaries of MOPPRS prior to the Remarketing
Dealer's election on the Notification Date to remarket the MOPPRS, the
Company shall within two Business Days after such purchase notify the
Remarketing Dealer of such purchase, and the obligations of the Remarketing
Dealer to remarket the MOPPRS shall be subject to termination as follows:
(i) in the event that the principal amount of MOPPRS purchased by the
Company is less than $30,000,000, the principal amount of MOPPRS which the
Remarketing Dealer shall be obligated to remarket after its election to
remarket on the Notification Date shall be reduced (hereinafter, a "Partial
Termination") by an amount equal to the principal amount of the MOPPRS
purchased by the Company (giving effect to all prior purchases of MOPPRS by
the Company or any of its affiliates or subsidiaries made in accordance
with this Section 11(d)(i)); and (ii) in the event that the principal
amount of MOPPRS purchased by the Company or any of its affiliates or
subsidiaries, when aggregated with all prior purchases of MOPPRS by the
Company or any of its affiliates or subsidiaries made in accordance with
this Section 11(d), is $30,000,000 or more, the Remarketing Dealer may
terminate all of its obligations
16
under this Agreement (it being agreed that if the Remarketing Dealer elects
to remarket the MOPPRS pursuant to Section 4(c), the principal amount of
the MOPPRS subject to remarketing shall be equal to the original aggregate
principal amount of MOPPRS minus the cumulative aggregate principal amount
purchased by the Company prior to the Notification Date in accordance with
this Section 11(d)). In the case of clause (i) above, the Partial
Termination shall be deemed to occur automatically and in the case of
clause (ii) above, the Remarketing Dealer shall promptly notify the Company
of its election with respect to termination.
(e) In the case of either (i) termination of this Agreement after the
Remarketing Dealer's election on the Notification Date to remarket the
MOPPRS, pursuant to Section 11(b) (other than Section 11(b)(ii)(B)(I)), or
(ii) termination of this Agreement due to the occurrence, prior to the
Remarketing Dealer's election on the Notification Date to remarket the
MOPPRS, of any event set forth in Section 8(b)(ii), (v) or (viii) or
Section 11(b)(iv), or (iii) termination or Partial Termination of this
Agreement pursuant to Section 11(d) due to the occurrence, prior to the
Remarketing Dealer's election on the Notification Date to remarket the
MOPPRS, of a repurchase of MOPPRS by the Company, the Company shall
immediately following the Call Price Determination Date (as defined below)
pay the Remarketing Dealer, in same-day funds by wire transfer to an
account designated by the Remarketing Dealer, the fair market value,
calculated as set forth below, of the Remarketing Dealer's right to
purchase and remarket the original aggregate principal amount (or, in the
event of a Partial Termination pursuant to Section 11(d), such aggregate
principal amount purchased by the Company or any of its affiliates or
subsidiaries) of the MOPPRS pursuant to this Agreement (the "Call Price").
In the case of a Partial Termination, the Call Price shall be payable
automatically without any request from the Remarketing Dealer; in all other
cases, the Call Price shall be payable upon the request of the Remarketing
Dealer.
In the case of termination of this Agreement pursuant to Section 11(b)
after the Remarketing Dealer elects on the Notification Date to remarket
the MOPPRS, the Call Price shall be equal to the excess of (i) the Dollar
Price of the MOPPRS determined as provided in Section 4 over (ii) the
aggregate principal amount of the MOPPRS.
In the case of termination of this Agreement due to the occurrence,
prior to the Remarketing Dealer's election on the Notification Date to
remarket the MOPPRS, of any event set forth in Section 8(b)(ii), (v) or
(viii) or Section 11(b)(iv) or 11(d), the Call Price shall be determined in
good faith by the Remarketing Dealer in the following manner. The
Remarketing Dealer shall select five reference market dealers reasonably
satisfactory to the Company. The Remarketing Dealer shall request each
reference market dealer to provide a quotation, as of the same time and
date, of the value of the Call Price, determined on a commercially
reasonable basis by reference, among other factors, to the formulation
described in the preceding paragraph. The Call Price shall be equal to the
average of the three quotations remaining after disregarding the highest
and lowest of such quotations. If fewer than five quotations are obtained,
the average of the quotations obtained shall be used.
The Remarketing Dealer shall determine the applicable Call Price on
the Business Day immediately following the date of termination or
notification of the occurrence, prior to the Remarketing Dealer's election
on the Notification Date to remarket the MOPPRS, of any event set forth in
Section 8(b)(ii), (v) or (viii), as the case may be, or as soon as
practicable thereafter (the "Call Price Determination Date"). The
Remarketing Dealer shall promptly notify the Company of the Call Price
Determination Date and the Call Price by telephone, confirmed in writing
(which may include facsimile or other electronic transmission). The Call
Price, absent manifest error, shall be binding and conclusive upon the
parties hereto.
(f) This Agreement shall not be subject to termination by the Company.
17
Section 12. Remarketing Dealer' Performance; Duty of Care. The duties
and obligations of the Remarketing Dealer shall be determined solely by the
express provisions of this Agreement and the Indenture. No implied
covenants or obligations of or against the Remarketing Dealer shall be read
into this Agreement or the Indenture. In the absence of bad faith on the
part of the Remarketing Dealer, the Remarketing Dealer may conclusively
rely upon any document furnished to it, which purports to conform to the
requirements of this Agreement and the Indenture, as to the truth of the
statements expressed in any of such documents. The Remarketing Dealer shall
be protected in acting upon any document or communication reasonably
believed by it to have been signed, presented or made by the proper party
or parties. The Remarketing Dealer shall incur no liability hereunder to
any Beneficial Owner or Holder of MOPPRS in its individual capacity or as
Remarketing Dealer for any action or failure to act in connection with the
remarketing or otherwise. The Remarketing Dealer shall incur no liability
to the Company with respect to calculation of the Interest Rate to
Maturity, except as a result of gross negligence or willful misconduct on
its part.
Section 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE.
Section 14. Term of Agreement. Unless otherwise terminated in
accordance with the provisions hereof, this Agreement shall remain in full
force and effect from the date hereof until the earlier of the first day
thereafter on which no MOPPRS are outstanding or the completion of the
remarketing of the MOPPRS. Regardless of any termination of this Agreement
pursuant to any of the provisions hereof, the obligations of the Company
pursuant to Sections 9, 10 and 11 hereof shall remain operative and in full
force and effect until fully satisfied.
Section 15. Successors and Assigns. The rights and obligations of the
Company hereunder may not be assigned or delegated to any other person
without the prior written consent of the Remarketing Dealer. The rights and
obligations of the Remarketing Dealer hereunder may not be assigned or
delegated to any other person without the prior written consent of the
Company; provided, however, that no consent shall be required in connection
with any such assignment by the Remarketing Dealer to an affiliate. This
Agreement shall inure to the benefit of and be binding upon the Company and
the Remarketing Dealer and their respective successors and assigns, and
will not confer any benefit upon any other person, partnership, association
or corporation other than persons, if any, controlling the Remarketing
Dealer within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, or any indemnified party to the extent provided in Section 9
hereof, or any person entitled to contribution to the extent provided in
Section 10 hereof. The terms "successors" and "assigns" shall not include
any purchaser of any MOPPRS merely because of such purchase.
Section 16. Headings. Section headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is agreed
that such section headings are not a part of this Agreement and will not be
used in the interpretation of any provisions of this Agreement.
Section 17. Severability. If any provision of this Agreement shall be
held or deemed to be or shall, in fact, be invalid, inoperative or
unenforceable as applied in any particular case in any or all jurisdictions
because it conflicts with any provision of any constitution, statute, rule
or public policy or for any other reason, such circumstances shall not have
the effect of rendering the provision in question invalid, inoperative or
unenforceable in any other case, circumstance or jurisdiction, or of
rendering any other provision or provisions of this Agreement invalid,
inoperative or unenforceable to any extent whatsoever.
18
Section 18. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of
which shall constitute one and the same document.
Section 19. Amendments. This Agreement may be amended by any
instrument in writing signed by each of the parties hereto so long as this
Agreement as amended is not inconsistent with the Indenture in effect as of
the date of any such amendment.
Section 20. Notices. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or
pursuant hereto shall be made in writing (which may include facsimile or
other electronic transmission) and shall be deemed to have been validly
given or made when delivered or mailed, registered or certified mail,
return receipt requested and postage prepaid, addressed as follows:
(a) to the Company:
Cytec Industries Inc.
Five Garret Xxxxxxxx Xxxxx
Xxxx Xxxxxxxx, XX 00000
Attention: Secretary
Facsimile No.: (000) 000-0000
(b) to Xxxxxxx Xxxxx:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Swaps Option Desk
Facsimile No.: (000) 000-0000
With a copy to: Xxxxx Xxxxxxxx/Transaction Management Group
Facsimile No.: (000) 000-0000
or to such other address as the Company or the Remarketing Dealer shall
specify in writing.
19
IN WITNESS WHEREOF, each of the Company and the Remarketing Dealer has
caused this to be executed in its name and on its
behalf by one of its duly authorized officers as of the date first above
written.
CYTEC INDUSTRIES INC.
By
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Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By
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Authorized Signatory
