, dated as of May 28, 2003 (the "") by and between AmerUs Group Co., an Iowa corporation (the
"Company"), and Wachovia Bank, National Association (formerly First Union
National Bank) not individually but solely as Purchase Contract Agent and as
attorney-in-fact of the holders of Purchase Contracts (each as defined in the
Purchase Contract Agreement (as defined herein)), and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated (the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Company will issue $125,000,000 (or up to $143,750,000 if
the Underwriters exercise their overallotment option in full) aggregate Stated
Amount of its Securities (the "Securities") under the Purchase Contract
Agreement, dated as of May 28, 2003 by and between the Purchase Contract Agent
and the Company (the "Purchase Contract Agreement") as amended or supplemented
from time to time; and
WHEREAS, the Securities will initially consist of 5,000,000 (or
5,750,000 if the Underwriters exercise their overallotment option in full)
Income PRIDES, each such security consisting of a Senior Note initially due 2008
issued by the Company in the principal amount of $25 (a "Debt Security") and a
Purchase Contract issued by the Company ("Purchase Contract") pursuant to the
Purchase Contract Agreement, and no Growth PRIDES, each such security consisting
of certain U.S. Treasury Securities and a Purchase Contract.
WHEREAS, the Debt Securities will be pledged pursuant to the Pledge
Agreement (the "Pledge Agreement"), dated as of May 28, 2003, by and between the
Company, BNY Midwest Trust Company, as Collateral Agent, Securities Intermediary
and Custodial Agent (the "Collateral Agent") and the Purchase Contract Agent, to
secure an Income PRIDES Holder's obligations under the related Purchase Contract
on the Purchase Contract Settlement Date.
WHEREAS, the Remarketing Agent will remarket in the manner provided
herein the Debt Securities pledged pursuant to the Pledge Agreement (the
"Pledged Debt Securities") of the Income PRIDES Holders who have not already
settled their Purchase Contracts, and any Debt Securities that are not pledged
pursuant to the Pledge Agreement (the "Other Debt Securities") of the holders
who have elected to have their Debt Securities remarketed, in each case, as
provided in the Purchase Contract Agreement.
WHEREAS, in the event of a successful remarketing as provided herein,
the applicable interest rate on the Debt Securities will be reset, on the Reset
Date, to the Reset Rate, which will be the sum of (1) the Applicable Benchmark
Treasury (as agreed between the Company and the Reset Agent) in effect on a
Remarketing Date and (2) the Reset Spread determined by the Reset Agent as the
additional spread required to produce the rate the Debt Securities should bear
in order for the Debt Securities being remarketed to have an approximate market
value on the Reset Date of (a) if the proposed Reset Date is not the Purchase
Contract Settlement Date, 100.25% multiplied by the Remarketing Treasury
Portfolio Purchase Price, plus the Remarketing Fee (the "Remarketing Value"), or
(b) if the proposed Reset Date is the Purchase Contract Settlement Date, 100.25%
multiplied by the aggregate principal amount of the Debt Securities being
remarketed; plus the
Remarketing Fee (the "Contract Settlement Value"), provided that the Reset Rate
shall in no event exceed the maximum permitted by applicable law.
WHEREAS, if a Reset Date occurs on a date that is not February 16,
2006, May 16, 2006 and August 16, 2006, the Reset Agent shall determine (1) the
minimum integral multiple number of Income PRIDES and Growth PRIDES required to
make Collateral Substitutions (as defined in the Purchase Contract Agreement),
and (2) the percentage of the undivided beneficial ownership interest in the
Remarketing Treasury Portfolio constituting the Applicable Ownership Interest
therein with respect to each Payment Date that follows such Reset Date.
WHEREAS, the Company has requested Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") to act as the Reset Agent
and as the Remarketing Agent and as such to perform the services described
herein; and
WHEREAS, Xxxxxxx Xxxxx is willing to act as Reset Agent and Remarketing
Agent and as such to perform such duties on the terms and conditions expressly
set forth herein.
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
Section 1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Purchase Contract
Agreement or, if not therein stated, the Pledge Agreement.
Section 2. Appointment and Obligations of Reset Agent and Remarketing
Agent; Remarketing.
(a) Appointment and Obligations. The Company hereby appoints
Xxxxxxx Xxxxx, and Xxxxxxx Xxxxx hereby accepts such appointment, (i) as the
Reset Agent to determine, in consultation with the Company and in the manner
provided for in the Indenture, the Debt Securities and the Purchase Contract
Agreement, (a) the Reset Rate, that in the opinion of the Reset Agent, will,
when applied to the Debt Securities, enable the aggregate principal amount of
the Debt Securities being remarketed to have an approximate aggregate market
value equal to (1) on any Remarketing Date (other than the third Business Day
immediately preceding August 16, 2006), the Remarketing Value or (2) on the
third Business Day immediately preceding August 16, 2006, the Contract
Settlement Value; and (b) if a Reset Date occurs on a date that is not February
16, 2006, May 16, 2006 or August 16, 2006, (1) the minimum integral multiple
number of Income PRIDES and Growth PRIDES required to make Collateral
Substitutions (as defined in the Purchase Contract Agreement), and (2) the
percentage of the undivided beneficial ownership interest in the Remarketing
Treasury Portfolio constituting the Applicable Ownership Interest therein with
respect to each Payment Date that follows such Reset Date; and (ii) as the
exclusive Remarketing Agent to remarket the Debt Securities (subject to the
right of Xxxxxxx Xxxxx to appoint additional remarketing agents hereunder as
described below) (1) on any Remarketing Date that is not the third Business Day
immediately preceding the Contract Settlement Date, to remarket (A) the Pledged
Debt Securities of Income PRIDES Holders who have not already settled their
Purchase Contracts, and (B) any Other Debt Securities of the holders who have
elected to have their Debt Securities so remarketed, for settlement on the third
Business Day following such Remarketing Date, or (2)
2
unless the Debt Securities have been successfully remarketed or called for a Tax
Event Redemption, on the third Business Day immediately preceding the Purchase
Contract Settlement Date, to remarket (A) the Pledged Debt Securities of Income
PRIDES Holders who have not already settled their Purchase Contracts and who
have failed to notify the Purchase Contract Agent, on or prior to the fifth
Business Day immediately preceding the Purchase Contract Settlement Date, of
their intention to settle the Purchase Contracts through Cash Settlement, and
(B) any Other Debt Securities of the holders who have elected to have their Debt
Securities so remarketed, in each case, as provided in the Purchase Contract
Agreement, the Pledge Agreement, the Indenture, the Debt Securities and this
Agreement, for settlement on the Purchase Contract Settlement Date.
In connection with any remarketing contemplated hereby, the Remarketing
Agent will enter into a Supplemental (the "Supplemental
") with the Company and the Purchase Contract Agent, which
shall either be (i) substantially in the form attached hereto as Exhibit A (with
such changes as the Company and the Remarketing Agent may agree upon, it being
understood that changes may be necessary in the representations, warranties,
covenants and other provisions of the Supplemental due to
changes in law or facts and circumstances or in the event that Xxxxxxx Xxxxx is
not the sole remarketing agent, and with such further changes therein as the
Remarketing Agent may reasonably request) or (ii) in such other form as the
Remarketing Agent may reasonably request, subject to the approval of the Company
(such approval not to be unreasonably withheld). Notwithstanding anything herein
to the contrary, Xxxxxxx Xxxxx shall not be obligated to act as Remarketing
Agent or Reset Agent hereunder unless the Supplemental is
in form and substance reasonably satisfactory to Xxxxxxx Xxxxx. The Company
agrees that Xxxxxxx Xxxxx shall have the right, on 15 Business Days' written
notice to the Company, to appoint one or more additional remarketing agents so
long as any such additional remarketing agents shall be reasonably acceptable to
the Company. Upon any such appointment, the parties shall enter into an
appropriate amendment to this Agreement to reflect the addition of any such
remarketing agent.
(b) Pursuant to the Supplemental , the
Remarketing Agent, either as sole remarketing agent or as representative of a
group of remarketing agents appointed as aforesaid, will agree, subject to the
terms and conditions set forth herein and therein, to use its reasonable efforts
to (i) remarket, on each Remarketing Date, the Debt Securities that the
Collateral Agent shall have notified the Remarketing Agent have been tendered
for, or otherwise are to be included in, the remarketing, at a price per $25
principal amount of the Debt Securities such that the aggregate price for the
aggregate principal amount of the Debt Securities being remarketed on the Reset
Date will be approximately (a) if the proposed Reset Date is not the Purchase
Contract Settlement Date, the Remarketing Value, or (b) if the proposed Reset
Date is the Purchase Contract Settlement Date, the Contract Settlement Value.
Notwithstanding the preceding sentence, the Remarketing Agent shall not remarket
any Debt Securities for a price less than the price (the "Minimum Price")
necessary for the aggregate principal amount of the Debt Securities being
remarketed to have an aggregate price (a) if the proposed Reset Date is not the
Purchase Contract Settlement Date, equal to 100% of the Treasury Portfolio
Purchase Price, or (b) if the proposed Reset Date is the Purchase Contract
Settlement Date, equal to 100% of the aggregate principal amount of such Debt
Securities. The Remarketing Agent shall not be obligated to remarket any Debt
Securities if a condition precedent to such remarketing is not fulfilled.
3
Upon a successful remarketing, after deducting the fee specified in
Section 3 below, the proceeds of remarketing shall be paid to the Collateral
Agent in accordance with Section 4.6 or 6.3 of the Pledge Agreement and Section
4.3 or 5.4 of the Purchase Contract Agreement (each of which Sections are
incorporated herein by reference). In the event any remarketing attempt is
unsuccessful, the Remarketing Agent shall return the Pledged Debt Securities to
the Collateral Agent and the Other Debt Securities delivered for remarketing to
the Custodial Agent for return to the holders of such Other Debt Securities.
(c) Neither the Remarketing Agent nor the Reset Agent shall have
any obligation whatsoever to purchase any Debt Securities, whether in connection
with a remarketing or otherwise, and shall in no way be obligated to provide
funds to make payment upon tender of Debt Securities for remarketing or to
otherwise expend or risk their own funds or incur or be exposed to financial
liability in the performance of their respective duties under this Agreement or
the Supplemental , and, without limitation of the
foregoing, the Remarketing Agent shall not be deemed an underwriter of the
remarketed Debt Securities. The Company shall not be obligated in any case to
provide funds to make payment upon tender of Debt Securities for remarketing.
(d) Subject to the conditions set forth in this Agreement, the
Remarketing Agent agrees to remarket, in whole but not in part, the Pledged Debt
Securities and the Other Debt Securities that are delivered to it for
remarketing by the Collateral Agent and the Custodial Agent no later than 10:00
a.m., New York City time, on the Business Day prior to any Remarketing Date. The
Remarketing Date(s) shall be (1) one or more Business Days selected by the
Company as a date on which the Remarketing Agent shall remarket the Debt
Securities, provided that no more than two such Remarketing Dates shall be
selected by the Company during each of (A) the period from the third Business
Day immediately preceding February 16, 2006 to April 31, 2006, and (B) the
period from June 1, 2006 to August 1, 2006, (2) unless there has been a
successful remarketing of the Debt Securities prior to such date, the third
Business Day immediately preceding May 16, 2006, and (3) unless there has been a
successful remarketing of the Debt Securities prior to such date, the third
Business Day immediately preceding August 16, 2006.
Section 3. Fees. Upon a successful remarketing of the Debt Securities,
the Remarketing Agent may deduct as its remarketing fee from the proceeds to be
remitted to the Collateral Agent (i) an amount representing 25 basis points
(0.25%) of the aggregate principal amount of the remarketed Debt Securities
(including Other Debt Securities) if the remarketed Debt Securities matures on
or prior to August 16, 2008 or (ii) such other amount as agreed between the
Company and the Remarketing Agent if the maturity date of the Debt Securities is
otherwise extended on the Reset Date to a date after August 16, 2008. In
addition, the Reset Agent shall receive from the Company a reasonable and
customary fee for acting as the Reset Agent (the "Reset Agent Fee"); provided,
however, that if the Remarketing Agent shall also act as the Reset Agent, then
the Reset Agent shall not be entitled to receive any such Reset Agent Fee.
Payment of such Reset Agent Fee shall be made by the Company on the Reset Date
in immediately available funds or, upon the instructions of the Reset Agent, by
certified or official bank check or checks or by wire transfer.
Section 4. Replacement and Resignation of Remarketing Agent and Reset
Agent.
4
(a) The Company may in its absolute discretion replace Xxxxxxx
Xxxxx as the Remarketing Agent and/or as the Reset Agent in its capacity
hereunder by giving notice prior to 3:00 p.m., New York City time, on the
eleventh Business Day immediately prior to any Remarketing Date provided, in
either case, that the Company must replace Xxxxxxx Xxxxx both as Remarketing
Agent and as Reset Agent unless Xxxxxxx Xxxxx shall agree to continue to serve
solely in one such capacity. Any such replacement shall become effective upon
the Company's appointment of a successor to perform the services that would
otherwise be performed hereunder by the Remarketing Agent and/or the Reset
Agent. Upon providing such notice, the Company shall use all reasonable efforts
to appoint such a successor and to enter into a with such
successor as soon as reasonably practicable. The Company shall notify the
Purchase Contract Agent, the Collateral Agent and the Custodial Agent of the
appointment of any such successor.
(b) Xxxxxxx Xxxxx may resign at any time and be discharged from
its duties and obligations hereunder as the Remarketing Agent and/or as the
Reset Agent by giving notice prior to 3:00 p.m., New York City time, on the
eleventh Business Day immediately prior to any Remarketing Date. Any such
resignation shall become effective upon the Company's appointment of a successor
to perform the services that would otherwise be performed hereunder by the
Remarketing Agent and/or the Reset Agent. Upon receiving notice from the
Remarketing Agent and/or the Reset Agent that it wishes to resign hereunder, the
Company shall appoint such a successor and enter into a remarketing agreement
with it as soon as reasonably practicable. The Company shall notify the Purchase
Contract Agent, the Collateral Agent and the Custodial Agent of the appointment
of any such successor.
Section 5. Dealing in the Securities. Each of the Remarketing Agent
and the Reset Agent, when acting hereunder or under the Supplemental Remarketing
Agreement or acting in its individual or any other capacity, may, to the extent
permitted by law, buy, sell, hold or deal in any of the Debt Securities. With
respect to any Securities, Debt Securities or other securities of the Company
owned by it, the Remarketing Agent and the Reset Agent may each exercise any
vote or join in any action with like effect as if it did not act in any capacity
hereunder. The Remarketing Agent and the Reset Agent respectively, 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 6. Registration Statement and Prospectus.
(a) In connection with any remarketing on any Remarketing Date, if
and to the extent required (in the view of counsel for either the Remarketing
Agent or the Company) by applicable law, regulations or interpretations in
effect at the time of such remarketing, the Company shall (i) use its reasonable
efforts to have a registration statement relating to the Debt Securities
effective under the Securities Act of 1933, as amended (the "1933 Act"), prior
to such Remarketing Date, (ii) if requested by the Remarketing Agent, furnish a
current preliminary prospectus and, if applicable, a current preliminary
prospectus supplement to be used by the Remarketing Agent in the remarketing not
later than three Business Days prior to such Remarketing Date (or such earlier
date as the Remarketing Agent may reasonably request) and in such quantities as
the Remarketing Agent may reasonably request, (iii) furnish a current final
prospectus and, if applicable, a current final prospectus supplement to be used
by the Remarketing Agent in the remarketing not later than
5
such Remarketing Date in such quantities as the Remarketing Agent may reasonably
request, and (iv) pay all expenses relating to the foregoing.
(b) If in connection with any remarketing on any Remarketing Date,
it shall not be possible, in the view of counsel (which need not be an opinion)
for either the Remarketing Agent or the Company, under applicable law,
regulations or interpretations in effect at the time of such remarketing to
register the offer and sale by the Company of the Debt Securities under the 1933
Act as otherwise contemplated by this Section 6, the Company (i) shall use its
reasonable efforts to take, or cause to be taken, all action and to do, or cause
to be done, all things necessary, proper and advisable to permit and effectuate
the offer and sale of the Debt Securities in connection with such remarketing
without registration under the 1933 Act pursuant to an exemption therefrom, if
available, including the exemption afforded by Rule 144A under the rules and
regulations promulgated under the 1933 Act by the Commission, (ii) if requested
by the Remarketing Agent, shall furnish a current preliminary remarketing
memorandum to be used by the Remarketing Agent in such remarketing not later
than three Business Days prior to such Remarketing Date (or in either case such
earlier date as the Remarketing Agent may reasonably request) and in such
quantities as the Remarketing Agent may reasonably request and (iii) shall
furnish a current final remarketing memorandum to be used by the Remarketing
Agent in such remarketing not later than such Remarketing Date in such
quantities as the Remarketing Agent may reasonably request, and shall pay all
expenses relating thereto.
(c) The Company shall also use its reasonable efforts to take all
such actions as may (upon advice of counsel to the Company or the Remarketing
Agent) be necessary or desirable under state securities or blue sky laws in
connection with any remarketing on any Remarketing Date.
Section 7. Conditions to the Remarketing Agent's Obligations. (a) In
addition to any other conditions provided in the Purchase Contract Agreement,
the Pledge Agreement, the Indenture, the Debt Securities or the Supplemental
Remarketing Agreement, the right of each holder of Debt Securities or Income
PRIDES to have their Debt Securities remarketed (or included in a particular
remarketing attempt) shall be subject to the conditions that (i) the Debt
Securities delivered for remarketing have not been called for a Tax Event
Redemption, (ii) the Remarketing Agent is able to find a purchaser or purchasers
for the Debt Securities being remarketed at the applicable Minimum Price and
such purchaser or purchasers deliver the purchase price therefor to the
Remarketing Agent as and when required, (iii) no prior successful remarketing of
the Debt Securities has occurred, (iv) the Purchase Contract Agent, the
Collateral Agent, the Custodial Agent, the Company and the Trustee shall have
performed their respective obligations in connection with the remarketing in
this Agreement, the Supplemental Remarketing Agreement, the Pledge Agreement,
the Purchase Contract Agreement, the Indenture or any other agreement relating
to such remarketing (including, without limitation, the Purchase Contract Agent
giving the Remarketing Agent notice of the aggregate principal amount of the
Pledged Debt Securities and the Other Debt Securities to be delivered for
remarketing no later than 10:00 a.m., New York City time, the Business Day
preceding the proposed Remarketing Date and the Collateral Agent and the
Custodial Agent concurrently delivering such Debt Securities to be remarketed to
the Remarketing Agent), (v) no Event of Default (as defined in the Indenture),
and no event that with the passage of time or the giving of notice or both would
become an Event of Default, shall be continuing, (vi) the accuracy of the
representations and warranties of the Company included and incorporated by
6
reference in this Agreement and the Supplemental Remarketing Agreement or in
certificates of any officer of the Company delivered pursuant to the provisions
included or incorporated by reference in this Agreement or the Supplemental
Remarketing Agreement, (vii) the performance by the Company of its covenants and
other obligations included and incorporated by reference in this Agreement and
the Supplemental Remarketing Agreement, (viii) the satisfaction of the other
conditions set forth and incorporated by reference in this Agreement and the
Supplemental Remarketing Agreement, and (ix) this Agreement and any applicable
Supplemental Remarketing Agreement have not terminated.
(b) If at any time during the term of this Agreement, any Event of
Default (as defined therein) under the Indenture, or event that with the passage
of time or the giving of notice or both would become an Event of Default under
the Indenture, has occurred and is continuing, then the obligations and duties
of the Remarketing Agent under this Agreement shall be suspended until such
default or event has been cured. The Company will promptly notify the
Remarketing Agent of such Events of Default and events known to it and will
cause the Trustee to give the Remarketing Agent notice of all such Events of
Default and events of which the Trustee is aware.
Section 8. Termination of Remarketing Agreement. This Agreement shall
terminate as to the Remarketing Agent and/or the Reset Agent (as the case may
be) on the effective date of its replacement pursuant to Section 4(a) hereof or
pursuant to Section 4(b) hereof. Notwithstanding any such termination, the
obligations set forth in Section 2 (insofar as such Section relates to the
payment of the Remarketing Fee) and Section 3 hereof shall survive and remain in
full force and effect until all amounts payable under such Sections shall have
been paid in full. In addition, each former Remarketing Agent and Reset Agent
shall be entitled to the rights and benefits under Sections 9 and 10 of this
Agreement notwithstanding the replacement or resignation of such Remarketing
Agent or Reset Agent.
Section 9. Remarketing Agent's Performance; Duty of Care. The duties
and obligations of the Remarketing Agent and the Reset Agent shall be determined
solely by the express provisions of this Agreement and, in the case of the
Remarketing Agent, the Supplemental Remarketing Agreement. No implied covenants
or obligations of or against the Remarketing Agent or the Reset Agent shall be
read into this Agreement or, in the case of the Remarketing Agent, the
Supplemental Remarketing Agreement. In the absence of bad faith on the part of
the Remarketing Agent or the Reset Agent, as the case may be, the Remarketing
Agent and the Reset Agent each may conclusively rely upon any document furnished
to it which purports to conform to the requirements of this Agreement or the
Supplemental Remarketing Agreement, as the case may be, as to the truth of the
statements expressed therein. Each of the Remarketing Agent and the Reset Agent
shall be protected in acting upon any document or communication reasonably
believed by it to be signed, presented or made by the proper party or parties.
Neither the Remarketing Agent nor the Reset Agent shall have any obligation to
determine whether there is any limitation under applicable law on the Reset Rate
on the Debt Securities or, if there is any such limitation, the maximum
permissible Reset Rate on the Debt Securities, and they shall rely solely upon
written notice from the Company (which the Company agrees to provide prior to
the third Business Day prior to any Remarketing Announcement Date) as to whether
or not there is any such limitation and, if so, the maximum permissible Reset
Rate. Neither the Remarketing Agent nor the Reset Agent shall incur any
liability under this Agreement or the Supplemental Remarketing Agreement, as the
case may be, to any beneficial owner or holder of Debt Securities, or other
securities, either in its individual
7
capacity or as Remarketing Agent or Reset Agent, as the case may be, for any
action or failure to act in connection with any remarketing or otherwise in
connection with the transactions contemplated by this Agreement or the
Supplemental Remarketing Agreement, except to the extent that it shall have been
determined by a court of competent jurisdiction by final and nonappealable
judgment that such liability has resulted from the willful misconduct, bad faith
or gross negligence of the Remarketing Agent or the Reset Agent. The provisions
of this Section 9 shall survive any termination of this Agreement and shall also
continue to apply to every Remarketing Agent and Reset Agent notwithstanding
their resignation or removal.
Section 10. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Remarketing Agent, the Reset Agent and their respective directors, officers,
employees, agents, affiliates and each person, if any, who controls the
Remarketing Agent or the Reset Agent within the meaning of either Section 15 of
the 1933 Act or Section 20 of the Securities Exchange Act of 1934, as amended
(the "1934 Act") (the Remarketing Agent, the Reset Agent and each such person or
entity being an "Agent Indemnified Party"), as follows:
(i) from and against any and all
losses, claims, damages, liabilities and expenses whatsoever, joint or several,
as incurred, to which such Agent Indemnified Party may become subject under any
applicable federal or state law, or otherwise, and related to, arising out of,
or based on (A) the failure to have an effective Registration Statement (as
defined in the Supplemental Remarketing Agreement) under the 1933 Act relating
to the Debt Securities, as the case may be, if required, or the failure to
satisfy the prospectus delivery requirements of the 1933 Act because the Company
failed to provide the Remarketing Agent with a Prospectus (as defined in the
Supplemental Remarketing Agreement) for delivery, or (B) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereto (including any information deemed to be a
part of the Registration Statement at the time it became effective pursuant to
paragraph (b) of Rule 430A under the 1933 Act, if applicable), or the omission
or alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (C) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus, or any amendment or supplement
thereto, or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (D) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary remarketing memorandum or any final remarketing memorandum, or any
amendment or supplement thereto, or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or (E)
any untrue statement or alleged untrue statement of a material fact contained in
any other documents (including, without limitation, any documents incorporated
or deemed to be incorporated by reference in any such documents) provided by the
Company for use in connection with the remarketing of the Debt Securities or any
of the transactions related thereto, or (F) any breach by the Company of any of
the representations, warranties or agreements included or incorporated by
reference in this Agreement or the Supplemental Remarketing Agreement, or (G)
any failure by the Company to make or consummate the remarketing of the Debt
Securities or the withdrawal, recession, termination, amendment or extension of
the terms of such remarketing, or (H) any
8
failure on the part of the Company to comply, or any breach by the Company of,
any of the provisions included or incorporated by reference in this Agreement,
the Supplemental Remarketing Agreement, the Purchase Contract Agreement, the
Income PRIDES, the Growth PRIDES, the Pledge Agreement, the Indenture or the
Debt Securities (collectively, the "Operative Documents"), or (I) the
remarketing of the Debt Securities or any other transaction contemplated by any
of the Operative Documents, or the engagement of the Remarketing Agent or the
Reset Agent pursuant to, or the performance by the Remarketing Agent or the
Reset Agent of the respective services contemplated by, this Agreement or the
Supplemental Remarketing Agreement, whether or not any remarketing of the Debt
Securities, or the reset of the interest rate on, or modification of the
maturity date or scheduled interest payment dates of, the Debt Securities, as
contemplated herein actually occur;
(ii) against any and all loss,
liability, claim, damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or of
any claim whatsoever related to, arising out of or based on any matter described
in (i) above; and
(iii) against any and all expense
whatsoever, as incurred (including the fees and disbursements of counsel chosen
by the Remarketing Agent or the Reset Agent, as the case may be), 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 related to, arising out of or based on any
matter described in (i) above to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that the Company shall not be liable under clause (i)(B),
(i)(C), (i)(D) or (i)(E) to the extent any such loss, claim, damage, liability
or expense arises out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by the Remarketing Agent or the Reset Agent
expressly for use in the Registration Statement (or any amendment thereto), any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or any preliminary or final remarketing memorandum (or any amendment or
supplement thereto) or any other documents used in connection with remarketing
of the Debt Securities, as the case may be;
provided, further, that with respect to any untrue statement or omission of a
material fact made in any preliminary prospectus, the indemnity agreement
contained in this Section 10(a) shall not inure to the benefit of the
Remarketing Agent to the extent that any such loss, claim, damage or liability
of the Remarketing Agent occurs under the circumstance where (w) the Company had
previously furnished copies of the Prospectus to the Remarketing Agent, (x)
delivery of the Prospectus was required to be made to such person, (y) the
Company sustained the burden of proving that the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission of a
material fact contained in the preliminary prospectus was corrected in the
Prospectus, and (z) the Remarketing Agent failed to send or give to such person,
at or prior to the written confirmation of the sale of Debt Securities to such
person, a copy of the Prospectus and the delivery thereof would have constituted
a complete defense to such person's claim in respect of such untrue statement of
alleged untrue statement or omission;
9
provided, further, that the Company shall not be liable under clause (i)(G) or
(i)(I) to the extent that such loss, claim, damage, liability or expense has, by
final judicial determination, resulted from the willful misconduct, bad faith or
gross negligence of the Remarketing Agent or the Reset Agent.
Other than as set forth in Section 10(b) below, the Company agrees that
no Agent Indemnified Party shall have any liability (whether direct or indirect,
in contract or tort or otherwise) to the Company or its respective security
holders or creditors relating to or arising out of the engagement of the
Remarketing Agent or the Reset Agent pursuant to, or the performance by the
Remarketing Agent or the Reset Agent of their respective services contemplated
by, this Agreement or the Supplemental Remarketing Agreement except to the
extent that any loss, claim, damage, liability or expense is found in a final
judgment in a court of competent jurisdiction to have resulted from the willful
misconduct, gross negligence or bad faith of the Remarketing Agent or the Reset
Agent, as the case may be.
The Company agrees that, without the prior written consent of the
Remarketing Agent or the Reset Agent, as the case may be, it will not settle,
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any action or claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 10
(whether or not the Remarketing Agent, Reset Agent or any other Agent
Indemnified Party is an actual or potential party to such claim, action or
proceeding), unless such settlement, compromise or consent (I) includes an
unconditional release of each Agent Indemnified Party from all liability arising
out of such litigation, investigation, proceeding, action or claim and (II) does
not include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of an Agent Indemnified Party.
(b) The Remarketing Agent and the Reset Agent, severally and not
jointly, agree to indemnify and hold harmless the Company, its directors and its
officers who sign the Registration Statement, and each person, if any, who
controls the Company within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act (the "Company Indemnified Parties") to the same
extent as the foregoing indemnity from the Company to the Agent Indemnified
Parties, but only with reference to information relating to such Remarketing
Agent and Reset Agent furnished to the Company in writing by such Remarketing
Agent and Reset Agent expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements thereto,
any preliminary remarketing memorandum, final remarketing memorandum or
amendments or supplements thereto or any other documents used in connection with
the Remarketing of the Debt Securities, as the case may be.
Each of the Remarketing Agent and the Reset Agent agrees that, without
the Company's prior written consent, it will not settle, compromise or consent
to the entry of any judgement with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any action or claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 10(b)
(whether or not the Company or any other Company Indemnified Party is an actual
or potential party to such claim, action or proceeding), unless such settlement,
compromise or consent (i) includes an unconditional release of each Company
Indemnified Party from all liability arising out of such litigation,
investigation,
10
proceeding, action or claim and (ii) does not include a statement as to, or an
admission of fault, culpability or a failure to act by or on behalf of a Company
Indemnified Party.
(c) If the indemnification provided for in Section 10(a) or 10(b)
hereof is for any reason unavailable to or insufficient to hold harmless any
party seeking indemnification thereunder (an "Indemnified Party") in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then
the Company on the one hand, and the Remarketing Agent and the Reset Agent on
the other hand, 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 Agent and
the Reset Agent on the other hand from the remarketing of the Debt Securities
contemplated hereby or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Remarketing Agent and the Reset
Agent on the other hand in connection with the statements, omissions or other
matters which resulted in such losses, liabilities, claims, damages or expenses,
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Remarketing Agent and the Reset
Agent on the other hand in connection with the remarketing of the Debt
Securities contemplated hereby shall be deemed to be in the same respective
proportions as the aggregate principal amount of the Debt Securities which are
or are to be remarketed bears to the aggregate fees actually received by the
Remarketing Agent and the Reset Agent under Section 3 hereof. The relative fault
of the Company on the one hand and the Remarketing Agent and the Reset Agent on
the other hand (i) in the case of an untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, shall be
determined by reference to, among other things, whether such untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
by the Remarketing Agent or the Reset Agent on the other hand and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission and (ii) in the case of any other action or
omission shall be determined by reference to, among other things, whether such
action or omission was taken or omitted to be taken by the Company on the one
hand, or by the Remarketing Agent or the Reset Agent, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
prevent or correct such action or omission. The Company, the Remarketing Agent
and the Reset Agent agree that it would not be just and equitable if
contribution pursuant to this Section 10(c) 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(c). The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an Indemnified Party and referred to above in this Section 10(c) shall be
deemed to include any legal or other expenses incurred by such Indemnified Party
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or any such omission or alleged omission or any other such action or
omission; provided, however, that to the extent permitted by applicable law, in
no event shall the Remarketing Agent or the Reset Agent be required to
contribute any amount which, in the aggregate, exceeds the aggregate fees
received by them under Section 3 of this Agreement. No investigation or failure
to investigate by any Indemnified Party shall impair the foregoing
indemnification and contribution agreement or any rights an Indemnified Party
may have. No person guilty of fraudulent misrepresentation (within the
11
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(d) In the event an Agent Indemnified Party is requested or
required to appear as a witness in any action brought by or on behalf of or
against the Company, the Company agrees to reimburse the Remarketing Agent or
the Reset Agent, as the case may be, for all reasonable expenses, as incurred,
which are incurred by the Remarketing Agent or the Reset Agent, as the case may
be, in connection with such Agent Indemnified Party's appearing and preparing to
appear as such a witness, including, without limitation, the reasonable fees and
disbursements of its legal counsel, and to compensate the Remarketing Agent or
the Reset Agent, as the case may be, in an amount to be mutually agreed upon.
(e) Promptly after receipt by an Indemnified Party of written
notice of any claim or commencement of an action or proceeding with respect to
which indemnification may be sought hereunder, such Indemnified Party will
notify the party from whom indemnification is sought (the "Indemnifying Party")
in writing of such claim or of the commencement of such action or proceeding,
but failure to so notify the Indemnifying Party will not relieve the
Indemnifying Party from any liability which it may have to such Indemnified
Party under this indemnification and contribution agreement except to the extent
the Indemnifying Party was materially prejudiced by such failure to notify, and
in any event will not relieve the Indemnifying Party from any other liability
that it may have to such Indemnified Party. The Indemnified Party, shall retain
counsel reasonably satisfactory to the Indemnified Party (or the Remarketing
Agent in the case of any Agent Indemnified Party) to represent the Indemnified
Party and any others the Company may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such proceeding. In any
such proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Company shall have agreed in writing to
pay such fees and expenses, (ii) the Company shall have failed to take
reasonable steps necessary to defend diligently any claim within ten calendar
days after receiving written notice from the Indemnified Party that that
Indemnified Party believes the Company has failed to take such steps or (iii)
the named parties to any such proceeding (including any impleaded parties)
include both the Company and the Indemnified Party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Company shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm (in addition to any local counsel) for all such Indemnified
Parties, and that all such fees and expenses shall be reimbursed as they are
incurred after receipt of adequate documentation thereof.
(f) Anything herein or in the Supplemental Remarketing Agreement
to the contrary notwithstanding, the provisions of this Section 10, and the
rights of the Remarketing Agent, the Reset Agent and the other Indemnified
Parties hereunder, shall be in addition to, and not in limitation of, any rights
or benefits (including, without limitation, rights to indemnification or
contribution) which the Remarketing Agent, the Reset Agent or any other
Indemnified Party may have under any other instrument or agreement.
Section 11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
12
Section 12. Term of Agreement. Unless otherwise terminated in
accordance with the provisions hereof and except as otherwise provided herein,
this Agreement shall remain in full force and effect from the date hereof until
the first day after the Reset Date or if a Failed Remarketing occurs, August 16,
2006.
Section 13. 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 Xxxxxxx Xxxxx as the Remarketing Agent and the
Purchase Contract Agent. The rights and obligations of Xxxxxxx Xxxxx as the
Remarketing Agent and/or as the Reset Agent hereunder may not be assigned or
delegated to any other person without the prior written consent of the Company.
This Agreement shall inure to the benefit of and be binding upon the Company and
Xxxxxxx Xxxxx as the Remarketing Agent and/or as the Reset Agent and their
respective successors and assigns. The terms "successors" and "assigns" shall
not include any purchaser of Securities merely because of such purchase.
Section 14. 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 provision of this Agreement.
Section 15. 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, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstances or jurisdiction, or of rendering any other provision
or provisions of this Agreement invalid, inoperative or unenforceable to any
extent whatsoever.
Section 16. Counterparts. This Agreement may be executed in
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
Section 17. Amendments. This Agreement may be amended by any
instrument in writing signed by the parties hereto.
Section 18. Notices. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or pursuant
hereto shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and confirmed in
writing. All written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered or mailed,
registered or certified mail, return receipt requested and postage prepaid. All
such notices, requests, consents or other communications shall be addressed as
follows: if to the Company, to AmerUs Group Co., 000 Xxxxxx Xxxxxx, Xxx Xxxxxx,
Xxxx 00000, Attention: Xxxxxxx Xxxxx, Chief Financial Officer, with a copy to
Xxxxxx X. Xxxxxxxx, Senior Vice President and General Counsel; if to the
Remarketing Agent or Reset Agent, to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, at Four World Financial Center, Xxxxx Xxxxx 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Capital Markets, with a copy
to Mayer, Brown, Xxxx & Maw, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx X. Best; and if to the Purchase Contract Agent, to Wachovia
Bank, National Association, 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx,
00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Corporate Trust Department, or
to such other address as any of the above shall specify to the other in writing.
Section 19. Information. The Company agrees to furnish the Remarketing
Agent and the Reset Agent with such information and documents as the Remarketing
Agent or the Reset Agent may reasonably request in connection with the
transactions contemplated by this Remarketing Agreement and the Supplemental
Remarketing Agreement, and make reasonably available to the Remarketing Agent,
the Reset Agent and any accountant, attorney or other advisor retained by the
Remarketing Agent or the Reset Agent such information that parties would
customarily require in connection with a due diligence investigation conducted
in accordance with applicable securities laws and cause the Company's officers,
directors, employees and accountants to participate in all such discussions and
to supply all such information reasonably requested by any such person in
connection with such investigation.
14
IN WITNESS WHEREOF, each of the Company, the Remarketing Agent and the
Purchase Contract Agent has caused this Agreement to be executed in its name and
on its behalf by one of its duly authorized officers as of the date first above
written.
AMERUS GROUP CO.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman, President and
Chief Executive Officer
CONFIRMED AND ACCEPTED:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: /s/ Xxx X. Xxxxxxxxx
-----------------------------
Authorized Signatory
WACHOVIA BANK, NATIONAL ASSOCIATION
not individually but solely as Purchase
Contract Agent and as attorney-in-fact
for the holders of the Purchase Contracts
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
15
Exhibit A to Remarketing Agreement
SUPPLEMENTAL REMARKETING AGREEMENT
Supplemental Remarketing Agreement dated _____________, ____ among
AmerUs Group Co., an Iowa corporation (the "Company"), Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated (the "Remarketing Agent"), and Wachovia Bank,
National Association, as Purchase Contract Agent and attorney-in-fact for the
Holders of the Purchase Contracts (as such terms are defined in the Purchase
Contract Agreement referred to in Schedule I hereto).
NOW, THEREFORE, for and in consideration of the covenants herein made,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Remarketing Agreement,
dated as of May 28, 2003 (the "Remarketing Agreement"), among the Company, the
Purchase Contract Agent and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated or, if not defined in the Remarketing Agreement, the meanings
assigned to them in the Purchase Contract Agreement (as defined in Schedule I
hereto).
2. Registration Statement and Prospectus. The Company has filed
with the Securities and Exchange Commission, and there has become effective, a
registration statement on Form S-3, including a prospectus, relating to the
Securities (as such term is defined on Schedule I hereto). Such Registration
Statement, as amended, and including the information deemed to be a part thereof
pursuant to Rule 430A under the 1933 Act, and the documents incorporated or
deemed to be incorporated by reference therein, are hereinafter called,
collectively, the "Registration Statement"; the [related preliminary prospectus
dated ___________, including the documents incorporated or deemed to be
incorporated by reference therein, [and preliminary prospectus supplement dated
__________] are hereinafter called, [collectively] the "preliminary
prospectus";] and the related prospectus dated , including the documents
incorporated or deemed to be incorporated by reference therein, [and prospectus
supplement dated ________] are hereinafter called, [collectively,] the
"Prospectus." The Company has provided copies of the Registration Statement [,
the preliminary prospectus] and the Prospectus to the Remarketing Agent, and
hereby consents to the use of the [preliminary prospectus] and the Prospectus in
connection with the remarketing of the Securities. [IN THE EVENT THAT A
REGISTRATION STATEMENT IS NOT POSSIBLE OR NOT REQUIRED PURSUANT TO THE
REMARKETING AGREEMENT, INSERT THE FOLLOWING: The Company has provided to the
Remarketing Agent, for use in connection with remarketing of the Securities (as
such term is defined on Schedule I hereto), a [preliminary remarketing
memorandum and] remarketing memorandum and [describe other materials, if any].
Such remarketing memorandum (including the documents incorporated or deemed to
be incorporated by reference therein, [and] [describe other materials] are
hereinafter called, collectively, the "Prospectus," [and such preliminary
marketing memorandum (including the documents incorporated or deemed to be
incorporated by reference therein) is hereinafter called a "preliminary
prospectus")]. The Company hereby consents to the use of the Prospectus [and the
preliminary prospectus] in connection with the remarketing of the Securities].
All references in this Agreement to amendments or supplements to the
Registration Statement [, the preliminary
16
prospectus] or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act, which is incorporated or deemed to be
incorporated by reference in the Registration Statement [, the preliminary
prospectus] or the Prospectus, as the case may be.
3. Provisions Incorporated by Reference.
(a) Subject to Section 3(b), the provisions of the
Underwriting Agreement (other than Section 2, Section 3, Section 5, Section 6,
Section 9 and Section 10 thereof) are incorporated herein by reference, mutatis
mutandis, and the Company hereby makes the representations and warranties, and
agrees to comply with the covenants and obligations, set forth in the provisions
of the Underwriting Agreement incorporated by reference herein, as modified by
the provisions of Section 3(b) hereof.
(b) With respect to the provisions of the Underwriting
Agreement incorporated herein, for the purposes hereof, (i) all references
therein to the "Underwriter" or "Underwriters" shall be deemed to refer to the
Remarketing Agent and any additional remarketing agents designated pursuant to
Section 2 of the Remarketing Agreement; (ii) all references therein to the
"Securities", "PRIDES" or "Initial Securities" shall be deemed to refer to the
Securities as defined herein; (iii) all references therein to the "Closing Date"
shall be deemed to refer to the Remarketing Closing Date specified in Schedule I
hereto; (iv) all references therein to the "Registration Statement" [, the
"preliminary prospectus"] or the "Final Prospectus" shall be deemed to refer to
the Registration Statement[, the preliminary prospectus] and the Prospectus,
respectively, as defined herein; (v) all references therein to this "Agreement,"
the "Underwriting Agreement," "hereof," "herein" and all references of similar
import, shall be deemed to mean and refer to this Supplemental Remarketing
Agreement; (vi) all references therein to "the date hereof," "the date of this
Agreement" and all similar references shall be deemed to refer to the date of
this Supplemental Remarketing Agreement; (vii) all references therein to any
"settlement date" shall be disregarded; and (viii) [other changes, including
changes relating to the offer and sale of the Securities in connection with the
Remarketing without registration under the 1933 Act in reliance upon an
exemption therefrom (including the exemption afforded by Rule 144A)].]
4. Remarketing. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth or
incorporated by reference herein and in the Remarketing Agreement, the
Remarketing Agent agrees to use its reasonable efforts to remarket, in the
manner set forth in Section 2(b) of the Remarketing Agreement, the aggregate
principal amount, as the case may be, of Securities set forth in Schedule I
hereto at a purchase price not less than 100% of the [Remarketing Value]
[Contract Settlement Value]. In connection therewith, the registered holder or
holders thereof agree, in the manner specified in Section 5 hereof, to pay to
the Remarketing Agent the Remarketing Fee, payable by deduction from any amount
received in connection from such remarketing in excess of the [Remarketing
Treasury Portfolio Purchase Price] [aggregate principal amount of the
Securities]. The right of each holder of Securities to have Securities tendered
for purchase shall be limited to the extent set forth in the last sentence of
Section 2(b) of the Remarketing Agreement (which is incorporated by reference
herein). As more fully provided in Section 2(c) of the Remarketing Agreement
(which is incorporated by reference herein), the Remarketing Agent is not
obligated to purchase any Securities in the remarketing or otherwise, and
neither the Company nor the Remarketing Agent shall be obligated in any case to
provide funds to make payment upon tender of Securities for remarketing.
17
5. Delivery and Payment. Delivery of payment for the remarketed
Securities by the purchasers thereof identified by the Remarketing Agent and
payment of the Remarketing Fee shall be made on the Remarketing Closing Date at
the location and time specified in Schedule I hereto (or such later date not
later than five Business Days after such date as the Remarketing Agent shall
designate), which date and time may be postponed by agreement between the
Remarketing Agent and the Company. Delivery of the remarketed Securities and
payment of the Remarketing Fee shall be made to the Remarketing Agent against
payment by the respective purchasers of the remarketed Securities of the
consideration therefor as specified herein, which consideration shall be paid to
the Collateral Agent for the account of the persons entitled thereto by
certified or official bank check or checks drawn on or by a New York Clearing
House bank and payable in immediately available funds or in immediately
available funds by wire transfer to an account or accounts designated by the
Collateral Agent.
If the Securities are not represented by a Global Security held by or
on behalf of The Depository Trust Company, certificates for the Securities shall
be registered in such names and denominations as the Remarketing Agent may
request not less than one full Business Day in advance of the Remarketing
Closing Date, and the Company, the Collateral Agent and the registered holder or
holders thereof agree to have such certificates available for inspection,
packaging and checking by the Remarketing Agent in New York, New York not later
than 1:00 p.m. on the Business Day prior to the Remarketing Closing Date.
6. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and confirmed in
writing. All written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered or mailed,
registered or certified mail, return receipt requested and postage prepaid. All
such notices, requests, consents or other communications shall be addressed as
follows: if to the Company, to AmerUs Group Co., 000 Xxxxxx Xxxxxx, Xxx Xxxxxx,
Xxxx 00000, Attention: Chief Financial Officer, with a copy to the General
Counsel; if to the Remarketing Agent or Reset Agent, to Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, at Four World Financial
Center, Xxxxx Xxxxx 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Capital Markets, with a copy to Mayer, Brown, Xxxx & Maw, 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Best; and if to the
Purchase Contract Agent, to Wachovia Bank, National Association, 000 Xxxxx Xxxxx
Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Corporate
Trust Department, or to such other address as any of the above shall specify to
the other in writing.
7. Conditions to Obligations of Remarketing Agent. Anything
herein to the contrary notwithstanding, the parties hereto agree (and the
holders and beneficial owners of the Securities will be deemed to agree) that
the obligations of the Remarketing Agent under this Agreement and the
Remarketing Agreement are subject to the satisfaction of the conditions set
forth in Section 7 of the Remarketing Agreement (which are incorporated herein
by reference), and to the satisfaction, on the Remarketing Closing Date, of the
conditions incorporated by reference herein from Section 6 of the Underwriting
Agreement as modified by Section 3(b) hereof (including, without limitation, the
delivery of opinions of counsel, officers' certificates and accountants' comfort
letters in form and substance satisfactory to the Remarketing Agent, the
accuracy as of the Remarketing Closing Date of the representations and
warranties of the Company included and incorporated by reference
18
herein and the performance by the Company of its obligations under the
Remarketing Agreement and this Agreement as and when required hereby and
thereby). In addition, anything herein or in the Remarketing Agreement to the
contrary notwithstanding, the Remarketing Agreement and this Agreement may be
terminated by the Remarketing Agent, by notice to the Company at any time prior
to the time of settlement on the Remarketing Closing Date, if any of the events
or conditions set forth in Section 10 of the Underwriting Agreement, as modified
by Section 3(b) hereof, shall have occurred or shall exist.
8. Indemnity and Contribution. Anything herein to the contrary
notwithstanding, the Remarketing Agent shall be entitled to indemnity and
contribution on the terms and conditions set forth in the Remarketing Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Remarketing Underwriters.
Very truly yours,
AMERUS GROUP CO.
By:____________________
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By:_______________________________
Authorized Signatory
WACHOVIA BANK, 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:
19
SCHEDULE I TO SUPPLEMENTAL REMARKETING AGREEMENT
Securities subject to the remarketing: Senior Notes due 2008 of the Company (the
"Securities").
Purchase Contract Agreement, dated as of May 28, 2003 (the "Purchase Contract
Agreement") by and between AmerUs Group Co., an Iowa corporation, and Wachovia
Bank, National Association.
Pledge Agreement dated as of May 28, 2003 (the "Pledge Agreement") by and
between AmerUs Group Co., an Iowa corporation, BNY Midwest Trust Company, and
Wachovia Bank, National Association.
Indenture dated as of June 16, 1998 (the "Indenture") by and between AmerUs
Group Co., an Iowa corporation, and Wachovia Bank, National Association
(formerly First Union National Bank), as supplemented by an Officer's
Certificate dated May 28, 2003, establishing the Securities.
[Minimum Initial Remarketing Price] [Aggregate Principal Amount
of Securities: $ ____________]
Purchase Agreement, dated May 28, 2003 (the "Underwriting Agreement") among
AmerUs Group Co. and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.
Remarketing Closing Date, Time and Location:
20
