EXHIBIT 8
, dated as of June __, 2001 (the "Agreement") by
and between Electronic Data Systems Corporation, a Delaware corporation (the
"Company"), The Chase Manhattan Bank, a New York banking corporation, not
individually but solely as Purchase Contract Agent (the "Purchase Contract
Agent") and as attorney-in-fact of the holders of Purchase Contracts (as defined
in the Purchase Contract Agreement (as defined herein)), and Xxxxxxx Xxxxx &
Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "Remarketing
Agent").
WITNESSETH:
WHEREAS, the Company will issue $1,400,000,000 (or $1,610,000,000 if
the underwriters' overallotment option is exercised in full) aggregate Stated
Amount of its FELINE PRIDES (the "FELINE PRIDES") under the Purchase Contract
Agreement, dated as of June __, 2001, by and between the Purchase Contract Agent
and the Company (the "Purchase Contract Agreement"); and
WHEREAS, the FELINE PRIDES will initially consist of 28,000,000 (or
32,200,000 if the underwriters' overallotment option is exercised in full) units
referred to as "Income PRIDES."
WHEREAS, the Company will issue concurrently in connection with the
issuance of the FELINE PRIDES $1,400,000,000 (or $1,610,000,000 if the
underwriters' overallotment option is exercised in full) aggregate principal
amount of Senior Notes due August 17, 2006 (the "Notes") of the Company; and
WHEREAS, the Notes forming a part of the Income PRIDES will be pledged
pursuant to the Pledge Agreement (the "Pledge Agreement"), dated as of June __,
2001, by and among the Company, First Union Trust Company, National Association,
as collateral agent (the "Collateral Agent") and the Purchase Contract Agent, to
secure a Income PRIDES holder's obligations under the related Purchase Contract
on the Purchase Contract Settlement Date; and
WHEREAS, the Notes of the Note holders electing to have their Notes
remarketed and of the Note holders will be remarketed by the Remarketing Agent
on the third Business Day immediately preceding May 17, 2004 (the "Initial
Remarketing Date"); and
WHEREAS, in the event of a Failed Initial Remarketing, the Notes of
the Note holders electing to have their Notes remarketed and of the Income
PRIDES holders who have elected not to settle the Purchase Contracts related to
their Income PRIDES by Cash Settlement and who have not settled their Purchase
Contracts early upon the occurrence of a corporate transaction will be
remarketed by the Remarketing Agent on the third Business Day immediately
preceding the Purchase Contract Settlement Date; and
WHEREAS, in the event of a Successful Initial Remarketing, the
applicable interest rate on the Notes will be reset on the Initial Remarketing
Date, to the Reset Rate to be determined by the Reset Agent as the rate that
such Notes should bear in order for the Applicable Principal Amount of the Notes
to have an approximate aggregate market value of 100.5% of the
Treasury Portfolio Purchase Price on the Initial Remarketing Date, provided that
in the determination of such Reset Rate, the Company shall, if applicable, limit
the Reset Rate to the maximum rate permitted by applicable law; and
WHEREAS, in the event of a Failed Initial Remarketing, the applicable
interest rate on the Notes that remain outstanding on and after the Purchase
Contract Settlement Date will be reset on the third Business Day immediately
preceding the Purchase Contract Settlement Date, to the Reset Rate to be
determined by the Reset Agent as the rate that such Notes should bear in order
to have an approximate market value of 100.5% of the aggregate principal amount
of the Notes on the third Business Day immediately preceding the Purchase
Contract Settlement Date, provided that in the determination of such Reset Rate,
the Company shall, if applicable, limit the Reset Rate to the maximum rate
permitted by applicable law; and
WHEREAS, the Company has requested Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") to act as the Reset Agent
and as the Remarketing Agent, and as such to perform the services described
herein; and
WHEREAS, Xxxxxxx Xxxxx is willing to act as Reset Agent and
Remarketing Agent and as such to perform such duties on the terms and conditions
expressly set forth herein;
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
Section 1. Definitions. Capitalized terms used and not defined in
this Agreement, in the recitals hereto or in the paragraph preceding such
recitals shall have the meanings assigned to them in the Purchase Contract
Agreement or, if not therein defined, the Pledge Agreement.
Section 2. Appointment and Obligations of Remarketing Agent.
(a) The Company hereby appoints Xxxxxxx Xxxxx and Xxxxxxx Xxxxx
hereby accepts such appointment, (i) as the Reset Agent to determine in
consultation with the Company, in the manner provided for herein and in the
Indenture (as in effect on the date of this ) with respect
to the Notes, (1) the Reset Rate that, in the opinion of the Reset Agent, will,
when applied to the Notes, enable the Applicable Principal Amount of the Notes
to have an approximate aggregate market value of 100.5% of the Treasury
Portfolio Purchase Price as of the Initial Remarketing Date, and (2) in the
event of a Failed Initial Remarketing, the Reset Rate that, in the opinion of
the Reset Agent, will, when applied to the Notes, enable a Note to have an
approximate market value of 100.5% of its principal amount as of the third
Business Day preceding the Purchase Contract Settlement Date, provided, in each
case, that the Company, by notice to the Reset Agent prior to the tenth Business
Day preceding May 17, 2004, in the case of the Initial Remarketing (as defined
below), or the Purchase Contract Settlement Date, in the case of the Secondary
Remarketing (as defined below), shall, if applicable, limit the Reset Rate so
that it does not exceed the maximum rate permitted by applicable law) and (ii)
as the exclusive Remarketing Agent (subject to the right of Xxxxxxx Xxxxx to
appoint additional remarketing agents hereunder as described below) to (1)
remarket the Notes of the Note holders electing to have their Notes remarketed
and of the Income PRIDES holders on the Initial Remarketing Date, for settlement
on May 17, 2004 and (2) in the case of a
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Failed Initial Remarketing, remarket the Notes of the Note holders electing to
have their Notes remarketed or of the Income PRIDES holders who have not early
settled the related Purchase Contracts and have failed to notify the Purchase
Contract Agent, on or prior to the fifth Business Day immediately preceding the
Purchase Contract Settlement Date, of their intention to settle the related
Purchase Contracts through Cash Settlement. In connection with the 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). Anything herein to the contrary notwithstanding,
Xxxxxxx Xxxxx shall not be obligated to act as Remarketing Agent or Reset Agent
hereunder unless the Supplemental is in form and substance
reasonably satisfactory to Xxxxxxx Xxxxx. The Company agrees that Xxxxxxx Xxxxx
shall have the right, on 15 Business Days notice to the Company, to appoint one
or more additional remarketing agents so long as any such additional remarketing
agents shall be reasonably acceptable to the Company. Upon any such appointment,
the parties shall enter into an appropriate amendment to this Agreement to
reflect the addition of any such remarketing agent.
(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 the Initial Remarketing Date, the Notes that the Trustee (as
such term is defined in the Indenture) shall have notified the Remarketing Agent
have been tendered for, or otherwise are to be included in, the Initial
Remarketing, at a price per Note such that the aggregate price for the
Applicable Principal Amount of the Notes is approximately 100.5% of the Treasury
Portfolio Purchase Price and (ii) in the event of a Failed Initial Remarketing,
remarket, on the third Business Day immediately preceding the Purchase Contract
Settlement Date, the Notes that the Trustee shall have notified the Remarketing
Agent have been tendered for, or otherwise are to be included in, the Secondary
Remarketing, at a price of approximately 100.5% of the aggregate principal
amount of such Notes. Notwithstanding the preceding sentence, the Remarketing
Agent shall not remarket any Notes for a price less than the price necessary for
the Applicable Principal Amount of the Notes to have an aggregate price equal to
100% of the Treasury Portfolio Purchase Price (the "Minimum Initial Remarketing
Price"), in the case of the Initial Remarketing, or the aggregate principal
amount of such Notes, in the case of the Secondary Remarketing. After deducting
the fee specified in Section 3 below, the proceeds of such Initial Remarketing
or Secondary Remarketing, as the case may be, shall be paid to the Collateral
Agent in accordance with Section 4.6 or 6.3 of the Pledge Agreement and Section
5.3 or 5.4 of the Purchase Contract Agreement (each of which Sections are
incorporated herein by reference). The right of each holder of Notes or Income
PRIDES to have Notes tendered for the Initial Remarketing or the Secondary
Remarketing, as the case may be, shall be limited to the extent that (i) the
Remarketing Agent conducts an Initial Remarketing and, in the event of a Failed
Initial Remarketing, a Secondary Remarketing pursuant to the terms of this
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Agreement, (ii) Notes tendered have not been called for redemption, (iii) the
Remarketing Agent is able to find a purchaser or purchasers for tendered Notes
at a price of not less than the Minimum Initial Remarketing Price, in the case
of the Initial Remarketing, and 100% of the principal amount thereof, in the
case of the Secondary Remarketing and (iv) such purchaser or purchasers deliver
the purchase price therefor to the Remarketing Agent as and when required.
(c) It is understood and agreed that neither the Remarketing Agent
nor the Reset Agent shall have any obligation whatsoever to purchase any Notes,
whether in the Initial Remarketing, Secondary Remarketing or otherwise, and
shall in no way be obligated to provide funds to make payment upon tender of
Notes 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 Notes. The Company shall not be obligated in any
case to provide funds to make payment upon tender of Notes for remarketing.
Section 3. Fees. In the event of a Successful Initial Remarketing,
the Remarketing Agent shall retain as a remarketing fee (the "Remarketing Fee")
an amount not exceeding 25 basis points (0.25%) of the Minimum Initial
Remarketing Price from any amount received in connection with such Initial
Remarketing in excess of the Minimum Initial Remarketing Price. In the event of
a Successful Secondary Remarketing, the Remarketing Agent shall retain as the
Remarketing Fee an amount not exceeding 25 basis points (0.25%), of the
principal amount of the remarketed Notes from any amount received in connection
with such Secondary Remarketing in excess of the aggregate principal amount of
such remarketed Notes. In addition, the Reset Agent shall, in either case,
receive from the Company a reasonable and customary fee (the "Reset Agent Fee");
provided, however, that if the Remarketing Agent shall also act as the Reset
Agent, then the Reset Agent shall not be entitled to receive any such Reset
Agent Fee. Payment of such Reset Agent Fee shall be made by the Company on the
Initial Remarketing Date, in the case of a Successful Initial Remarketing, or on
the third Business Day immediately preceding the Purchase Contract Settlement
Date, in the case of a Successful Secondary Remarketing, in immediately
available funds or, upon the instructions of the Reset Agent, by certified or
official bank check or checks or by wire transfer.
Section 4. Replacement and Resignation of Remarketing Agent.
(a) The Company may in its absolute discretion replace Xxxxxxx Xxxxx
as the Remarketing Agent and as the Reset Agent hereunder by giving notice prior
to 3:00 p.m., New York City time (i) on the eleventh Business Day immediately
prior to May 17, 2004, or (ii) in the event of a Failed Initial Remarketing,
prior to 3:00 p.m., New York City time on the eleventh Business Day immediately
prior to the Purchase Contract Settlement Date, provided, in either case, that
the Company must replace Xxxxxxx Xxxxx both as Remarketing Agent and as Reset
Agent unless Xxxxxxx Xxxxx shall otherwise agree. Any such replacement shall
become effective upon the Company's appointment of a successor to perform the
services that would otherwise be performed hereunder by the Remarketing Agent
and the Reset Agent. Upon providing such notice, the Company shall use all
reasonable efforts to appoint such a successor and to enter into a with such successor as soon as reasonably practicable.
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(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 (i) on the
eleventh Business Day immediately prior to May 17, 2004, or (ii) in the event of
a Failed Initial Remarketing, on the eleventh Business Day immediately prior to
the Purchase Contract Settlement Date. Any such resignation shall become
effective upon the Company's appointment of a successor to perform the services
that would otherwise be performed hereunder by the Remarketing Agent and/or the
Reset Agent. Upon receiving notice from the Remarketing Agent and/or the Reset
Agent that it wishes to resign hereunder, the Company shall appoint such a
successor and enter into a remarketing agreement with it as soon as reasonably
practicable.
Section 5. Dealing in the Securities. Each of the Remarketing Agent
and the Reset Agent, when acting hereunder or, in the case of the Remarketing
Agent, under the Supplemental Remarketing Agreement, or when acting in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold or deal in any of the Notes, Growth PRIDES, Income PRIDES or any
other securities of the Company. With respect to any Notes, Growth PRIDES
Units, Income PRIDES or any other securities of the Company owned by it, each of
the Remarketing Agent and the Reset Agent may exercise any vote or join in any
action with like effect as if it did not act in any capacity hereunder. Each of
the Remarketing Agent and the Reset Agent, in its individual capacity, either as
principal or agent, may also engage in or have an interest in any financial or
other transaction with the Company as freely as if it did not act in any
capacity hereunder.
Section 6. Registration Statement and Prospectus.
(a) In connection with the Initial Remarketing, if and to the extent
required in the view of counsel (which need not be an opinion) for either the
Remarketing Agent or the Company by applicable law, regulations or
interpretations in effect at the time of such Initial Remarketing, the Company
(i) shall use its reasonable efforts to have a registration statement relating
to the Notes effective under the Securities Act of 1933 prior to the third
Business Day immediately preceding May 17, 2004, (ii) if requested by the
Remarketing Agent shall furnish a current preliminary prospectus and, if
applicable, a current preliminary prospectus supplement to be used by the
Remarketing Agent in the Initial Remarketing not later than seven Business Days
prior to May 17, 2004 (or 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 prospectus and, if
applicable, a final prospectus supplement to be used by the Remarketing Agent in
the Initial Remarketing not later than the third Business Day immediately
preceding May 17, 2004 in such quantities as the Remarketing Agent may
reasonably request, and shall pay all expenses relating thereto.
(b) In the event of a Failed Initial Remarketing and in connection
with the Secondary Remarketing, if and to the extent required in the view of
counsel (which need not be an opinion) for either the Remarketing Agent or the
Company by applicable law, regulations or interpretations in effect at the time
of such Secondary Remarketing, the Company (i) shall use its reasonable efforts
to have a registration statement relating to the Notes effective under the
Securities Act of 1933 prior to the third Business Day immediately preceding the
Purchase Contract Settlement Date, (ii) if requested by the Remarketing Agent,
shall furnish a current
5
preliminary prospectus and, if applicable, a current preliminary prospectus
supplement to be used by the Remarketing Agent in the Secondary Remarketing not
later than seven Business Days prior to the Purchase Contract Settlement Date
(or such earlier date as the Remarketing Agent may reasonably request) and in
such quantities as the Remarketing Agent may reasonably request, and (iii) shall
furnish a current final prospectus and, if applicable, a final prospectus
supplement to be used by the Remarketing Agent in the Secondary Remarketing not
later than the third Business Day immediately preceding the Purchase Contract
Settlement Date in such quantities as the Remarketing Agent may reasonably
request, and shall pay all expenses relating thereto.
(c) If in connection with the Initial Remarketing or, in the event of
a Failed Initial Remarketing, the Secondary Remarketing 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 Initial Remarketing or such
Secondary Remarketing to register the offer and sale by the Company of the Notes
under the Securities Act of 1933 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 Notes in connection
with the Initial Remarketing or the Secondary Remarketing, as the case may be,
without registration under the Securities Act of 1933 pursuant to an exemption
therefrom, if available, including the exemption afforded by Rule 144A under the
rules and regulations promulgated under the Securities Act of 1933 by the
Securities and Exchange Commission, (ii) if requested by the Remarketing Agent
shall furnish a current preliminary remarketing memorandum to be used by the
Remarketing Agent in the Initial Remarketing or the Secondary Remarketing, as
the case may be, not later than seven Business Days prior to May 17, 2004, in
the case of the Initial Remarketing, or the Purchase Contract Settlement Date,
in the case of the Secondary Remarketing (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 the Initial
Remarketing or the Secondary Remarketing, as the case may be, not later than the
third Business Day immediately preceding May 17, 2004, in the case of the
Initial Remarketing, or the Purchase Contract Settlement Date, in the case of
the Secondary Remarketing, in such quantities as the Remarketing Agent may
reasonably request, and shall pay all expenses relating thereto.
(d) The Company shall also take all such actions as may (upon advice
of counsel to the Company or the Remarketing Agent) be necessary or desirable
under state securities or blue sky laws in connection with the Initial
Remarketing and the Secondary Remarketing.
Section 7. Conditions to the Remarketing Agent's Obligations. (a)
The obligations of the Remarketing Agent and the Reset Agent under this
Agreement and, in the case of the Remarketing Agent, the Supplemental
Remarketing Agreement shall be subject to the terms and conditions of this
Agreement and the Supplemental Remarketing Agreement, including, without
limitation, the following conditions: (i) the Notes tendered for, or otherwise
to be included in the Initial Remarketing or Secondary Remarketing, as the case
may be, have not been called for redemption, (ii) the Remarketing Agent is able
to find a purchaser or purchasers
6
for tendered Notes (1) in the case of the Initial Remarketing, at a price not
less than Minimum Initial Remarketing Price, and (2) in the case of the
Secondary Remarketing, at a price not less than 100% of the principal amount
thereof, (iii) 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 Initial Remarketing and, in the event of a
Failed Initial Remarketing, in connection with the Secondary Remarketing, in
each case pursuant to the Purchase Contract Agreement, the Pledge Agreement, the
Indenture, this Agreement and the Supplemental Remarketing Agreement (including,
without limitation, giving the Remarketing Agent notice of the Treasury
Portfolio Purchase Price no later than 10:00 a.m., New York City time, on the
fourth Business Day prior to May 17, 2004, in the case of the Initial
Remarketing, and giving the Remarketing Agent notice of the aggregate principal
amount, as the case may be, of Notes to be remarketed, no later than 10:00 a.m.,
New York City time, on the fourth Business Day prior to the Purchase Contract
Settlement Date, in the case of the Secondary Remarketing, and, in each case,
concurrently delivering the Notes to be remarketed to the Remarketing Agent),
(iv) no Event of Default (as defined in the Indenture) shall have occurred and
be continuing, (v) the accuracy of the representations and warranties of the
Company included and incorporated by reference in this Agreement and the
Supplemental Remarketing Agreement or in certificates of any officer of the
Company or any of its subsidiaries delivered pursuant to the provisions included
or incorporated by reference in this Agreement or the Supplemental Remarketing
Agreement, (vi) the performance by the Company of its covenants and other
obligations included and incorporated by reference in this Agreement and the
Supplemental Remarketing Agreement, and (vii) the satisfaction of the other
conditions set forth and incorporated by reference in this Agreement and the
Supplemental Remarketing Agreement.
(b) If at any time during the term of this Agreement, any Indenture
Event of Default or event that with the passage of time or the giving of notice
or both would become an Indenture Event of Default has occurred and is
continuing under the Indenture, then the obligations and duties of the
Remarketing Agent and the Reset Agent under this Agreement and the Supplemental
Remarketing Agreement shall be suspended until such default or event has been
cured. The Company will promptly give the Remarketing Agent notice of all such
defaults and events of which the Company is aware.
Section 8. Termination of Remarketing Agreement. This Agreement
shall terminate as to any Remarketing Agent or Reset Agent which is replaced on
the effective date of its replacement pursuant to Section 4(a) hereof or
pursuant to Section 4(b) hereof. Notwithstanding any such termination, the
obligations set forth in Section 3 hereof shall survive and remain in full force
and effect until all amounts payable under said Section 3 shall have been paid
in full. In addition, each former Remarketing Agent and Reset Agent shall be
entitled to the rights and benefits under Section 10 of this Agreement
notwithstanding the replacement or resignation of such Remarketing Agent or
Reset Agent.
Section 9. Remarketing Agent's Performance; Duty of Care. The duties
and obligations of the Remarketing Agent and the Reset Agent shall be determined
solely by the express provisions of this Agreement and, in the case of the
Remarketing Agent, the Supplemental Remarketing Agreement. No implied covenants
or obligations of or against the Remarketing Agent or the Reset Agent shall be
read into this Agreement or the Supplemental Remarketing Agreement. In the
absence of bad faith on the part of the Remarketing Agent or the
7
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
Notes or, if there is any such limitation, the maximum permissible Reset Rate on
the Notes, and they shall rely solely upon written notice from the Company
(which the Company agrees to provide prior to the tenth Business Day before May
17, 2004, in the case of the Initial Remarketing, and prior to the tenth
Business Day before Purchase Contract Settlement Date, in the case of the
Secondary Remarketing) as to whether or not there is any such limitation and, if
so, the maximum permissible Reset Rate. Neither the Remarketing Agent nor the
Reset Agent shall incur any liability under this Agreement or the Supplemental
Remarketing Agreement to any beneficial owner or holder of Notes, or other
securities, either in its individual capacity or as Remarketing Agent or Reset
Agent, as the case may be, for any action or failure to act in connection with
the Remarketing or otherwise in connection with the transactions contemplated by
this Agreement or the Supplemental Remarketing Agreement. The provisions of this
Section 9 shall survive any termination of this Agreement and shall also
continue to apply to every Remarketing Agent and Reset Agent notwithstanding
their resignation or removal.
Section 10. Indemnification and Contribution. (a) The Company 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 Securities Act of 1933, as amended (the "1933 Act"),
or Section 20 of the Securities Exchange Act of 1934, as amended (the "1934
Act") (the Remarketing Agent, the Reset Agent and each such person or entity
being an "Indemnified Party"), as follows:
(i) from and against any and all losses, claims, damages, liabilities
and expenses whatsoever, joint or several, as incurred, to which such
Indemnified Party may become subject under any applicable federal or state law,
or otherwise, and related to, arising out of, or based on (A) the failure to
have an effective Registration Statement (as defined in the Supplemental
Remarketing Agreement) under the 1933 Act relating to the Notes, 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
8
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 or 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 information (whether oral or
written) or documents (including, without limitation, any documents incorporated
or deemed to be incorporated by reference in any such information or documents)
provided by the Company for use in connection with the remarketing of the Notes
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 Notes
(including, without limitation, any Failed Initial Remarketing or Failed
Secondary Remarketing) or the withdrawal, recession, termination, amendment or
extension of the terms of such remarketing, or (H) any 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 Notes (collectively,
the "Operative Documents") or (I) the remarketing of the Notes, as the case may
be, or any other transaction contemplated by any of the Operative Documents, or
the engagement of the Remarketing Agent or the Reset Agent pursuant to, or the
performance by the Remarketing Agent or the Reset Agent of the respective
services contemplated by, this Agreement or the Supplemental Remarketing
Agreement, whether or not the Initial Remarketing or the Secondary Remarketing
or the reset of the interest rate on the Notes 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 Xxxxxxx Xxxxx), incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever related to, arising out or based on any
matter described in (i) above, whether or not such Indemnified Party is a party
and whether or not such claim, action or proceeding is initiated or brought by
or on behalf of the Company 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 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 Notes, as the case may be; provided,
9
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 it shall have been determined by a
court of competent jurisdiction by final and nonappealable judgment that (w) the
Company had previously furnished copies of the Prospectus to Xxxxxxx Xxxxx, (x)
delivery of the Prospectus was required to be made to such person, (y) 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) there was not sent or given to such person,
at or prior to the written confirmation of the sale of 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 or
omission or alleged untrue statement or omission.
The Company agrees that no 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 by a court of competent jurisdiction to
have resulted from the willful misconduct, gross negligence or bad faith of the
Remarketing Agent or the Reset Agent, as the case may be.
The Company agrees that, without Xxxxxxx Xxxxx'x prior written
consent, 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 Xxxxxxx Xxxxx or any other Indemnified
Party is an actual or potential party to such claim, action or proceeding),
unless such settlement, compromise or consent (i) includes an unconditional
release of each Indemnified Party from all liability arising out of such
litigation, investigation, proceeding, action or claim and (ii) does not include
a statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an Indemnified Party.
(b) If the indemnification provided for in Section 10(a) hereof is
for any reason unavailable to or insufficient to hold harmless an Indemnified
Party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then the Company 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 Notes 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
10
Remarketing Agent and the Reset Agent on the other hand in connection with the
remarketing of the Notes contemplated hereby shall be deemed to be in the same
respective proportions as the aggregate principal amount of the Notes 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(b) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 10(b). The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an Indemnified Party and referred to above in this Section 10(b) shall be
deemed to include any legal or other expenses incurred by such Indemnified Party
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or any such omission or alleged omission or any other such action or
omission; provided, however, that to the extent permitted by applicable law, in
no event shall the Remarketing Agent or the Reset Agent be required to
contribute any amount which, in the aggregate, exceeds the aggregate fees
received by them under Section 3 of this Agreement. No investigation or failure
to investigate by any Indemnified Party shall impair the foregoing
indemnification and contribution agreement or any rights an Indemnified Party
may have. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(c) In the event an Indemnified Party is requested or required to
appear as a witness in any action brought by or on behalf of or against the
Company, 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 Indemnified Party's appearing and preparing to appear as
such a witness, including, without limitation, the reasonable fees and
disbursements of its legal counsel, and to compensate the Remarketing Agent or
the Reset Agent, as the case may be, in an amount to be mutually agreed upon.
In addition, the Company agrees to compensate the Remarketing Agent or the Reset
Agent, as the case may be, in an amount to be mutually agreed upon per person
per day for each day that an officer, director or employee of the Remarketing
Agent or the Reset Agent, as the case may be, or any of their respective
affiliates is involved in preparation, discovery or testimony pertaining to any
litigation, discovery or investigation in connection with this Agreement or the
Supplemental Remarketing Agreement.
11
(d) 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
Company in writing of such claim or of the commencement of such action or
proceeding, but failure to so notify the Company will not relieve the Company
from any liability which it may have to such Indemnified Party under this
indemnification and contribution agreement, and in any event will not relieve
the Company from any other liability that it may have to such Indemnified Party.
Xxxxxxx Xxxxx shall have the right to select counsel in connection with any
transaction for which any Indemnified Party may be entitled to indemnification
or contribution hereunder, provided that in no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all Indemnified Parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
(e) Anything herein or in the Supplemental Remarketing Agreement to
the contrary notwithstanding, the provisions of this Section 10, and the rights
of the Remarketing Agent, the Reset Agent and the other Indemnified Parties
hereunder, shall be in addition to, and not in limitation of, any rights or
benefits (including, without limitation, rights to indemnification or
contribution) which the Remarketing Agent, the Reset Agent or any other
Indemnified Party may have under any other instrument or agreement.
Section 11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
principles of conflicts of laws.
Section 12. Term of Agreement. (a) Unless otherwise terminated in
accordance with the provisions hereof and except as otherwise provided herein,
this Agreement shall remain in full force and effect from the date hereof until
the first day thereafter on which no Notes are outstanding, or, if earlier, the
Business Day immediately following May 17, 2004, in the case of a Successful
Initial Remarketing, or the Business Day immediately following the Purchase
Contract Settlement Date, in the case of a Successful Secondary Remarketing.
Anything herein to the contrary notwithstanding, the provisions of the last
section of Section 8 hereof and the provisions of Sections 3, 9, 10 and 12(b)
hereof shall survive any termination of this Agreement and remain in full force
and effect.
(b) All representations and warranties included or incorporated by
reference in this Agreement, or the Supplemental Remarketing Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto
or thereto, shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of the Remarketing Agent, the Reset Agent
or any of their controlling persons, or by or on behalf of the Company or the
Purchase Contract Agent, and shall survive the remarketing of the Notes.
Section 13. Successors and Assigns. The rights and obligations of the
Company and the Purchase Contract Agent (both in its capacity as Purchase
Contract Agent and as attorney-in-fact) hereunder may not be assigned or
delegated to any other person without the prior written consent of the
Remarketing Agent and the Reset Agent. The rights and obligations of the
Remarketing Agent and the Reset Agent hereunder may not be assigned or delegated
to
12
any other person without the prior written consent of the Company, except that
the Remarketing Agent shall have the right to appoint additional remarketing
agents as provided herein. This Agreement shall inure to the benefit of and be
binding upon the Company, the Purchase Contract Agent, the Remarketing Agent and
the Reset Agent and their respective successors and assigns and the other
Indemnified Parties (as defined in Section 10 hereof) and the successors,
assigns, heirs and legal representatives of the Indemnified Parties. The terms
"successors" and "assigns" shall not include any purchaser of Securities or
Notes merely because of such purchase.
Section 14. Headings. Section headings have been inserted in this
Agreement and the Supplemental Remarketing Agreement as a matter of convenience
of reference only, and it is agreed that such section headings are not a part of
this Agreement or the Supplemental Remarketing Agreement and will not be used in
the interpretation of any provision of this Agreement or the Supplemental
Remarketing Agreement.
Section 15. Severability. If any provision of this Agreement or the
Supplemental Remarketing Agreement shall be held or deemed to be or shall, in
fact, be invalid, inoperative or unenforceable as applied in any particular case
in any or all jurisdictions because it conflicts with any provisions of any
constitution, statute, rule or public policy or for any other reason, then, to
the extent permitted by law, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstances or jurisdiction, or of rendering any other provision
or provisions of this Agreement or the Supplemental Remarketing Agreement, as
the case may be, invalid, inoperative or unenforceable to any extent whatsoever.
Section 16. Counterparts. This Agreement and the Supplemental
Remarketing Agreement may be executed in counterparts, each of which shall be
regarded as an original and all of which shall constitute one and the same
document.
Section 17. Amendments. This Agreement and the Supplemental
Remarketing Agreement may be amended by any instrument in writing signed by the
parties hereto. The Company and the Purchase Contract Agent agree that they
will not enter into, cause or permit any amendment or modification of the
Purchase Contract Agreement, the Indenture, the Pledge Agreement, the Notes, the
FELINE PRIDES or any other instruments or agreements relating to the Notes or
the FELINE PRIDES which would in any way affect the rights, duties or
obligations of the Remarketing Agent or the Reset Agent without the prior
written consent of the Remarketing Agent or the Reset Agent, as the case may be.
Section 18. Notices. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or pursuant
hereto shall be made in writing or transmitted by any standard form of
telecommunication, including telephone or telecopy, and confirmed in writing.
All written notices and confirmations of notices by telecommunication shall be
deemed to have been validly given or made when delivered or mailed, registered
or certified mail, return receipt requested and postage prepaid. All such
notices, requests, consents or other communications shall be addressed as
follows: if to the Company, to Electronic Data Systems Corporation, 0000 Xxxxxx
Xxxxx, Xxxxx, Xxxxx, 00000-0000, Attention: Chief Financial Officer; if to the
Remarketing Agent or Reset Agent, to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, at World Financial Center, North Tower, New York,
New
13
York 10281, Attention: Xxxx Xxxxxxxx, with a copy to Shearman & Sterling, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx III; and if
to the Purchase Contract Agent, to The Chase Manhattan Bank,
___________________________________, 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 Purchase Contract Agent
and the Remarketing Agent has caused this Agreement to be executed in its name
and on its behalf by one of its duly authorized signatories as of the date first
above written.
ELECTRONIC DATA SYSTEMS CORPORATION
By:
-------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By:
--------------------------
Authorized Signatory
THE CHASE MANHATTAN BANK
not individually but solely as Purchase Contract
Agent and as attorney-in-fact for the holders of
the Purchase Contracts
By:
-------------------------
Name:
Title:
15
Exhibit A to
Remarketing Agreement
Form of Supplemental Remarketing Agreement
Supplemental Remarketing Agreement dated _____________, ____ among
Electronic Data Systems Corporation, a Delaware corporation (the "Company"),
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "Remarketing Agent"),
and The Chase Manhattan Bank, 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 June __, 2001 (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 Securities Act of 1933, as amended (the "1933
Act"), and the documents incorporated or deemed to be incorporated by reference
therein, are hereinafter called, collectively, the "Registration Statement";
(the related preliminary prospectus dated ___________, including the documents
incorporated or deemed to be incorporated by reference therein, [and preliminary
prospectus supplemented dated __________] are hereinafter called, [collectively]
the "preliminary prospectus";] and the related prospectus dated _____________,
including the documents incorporated or deemed to be incorporated by reference
therein, [and prospectus supplement dated ________] are hereinafter called,
[collectively,] the "Prospectus." The Company 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, 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
16
Statement [, the preliminary prospectus] or the Prospectus shall be deemed to
mean and include the filing of any document under the Securities Exchange Act of
1934, as amended (the "1934 Act"), which is incorporated or deemed to be
incorporated by reference in the Registration Statement [, the preliminary
prospectus] or the Prospectus, as the case may be.
3. Provisions Incorporated by Reference.
(a) Subject to Section 3(b), the provisions of the Underwriting
Agreement (other than Section 2, Section 3, Section 4, Section 7, Section 8 and
Section 9 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 all references to the "Representative" or the "Representatives" shall
be deemed to refer to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
("Xxxxxxx Xxxxx"); (ii) all references therein to the "Securities" 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 Securities Act of 1933 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 [Minimum Initial Remarketing Price] [aggregate principal
amount of the Securities]. In connection therewith, the registered holder or
holders thereof agree, in the manner specified in Section 5 hereof, to pay to
the Remarketing Agent a Remarketing Fee equal to an amount not exceeding 25
basis points (0.25%) of [the Minimum Initial Remarketing Price] [such aggregate
principal amount,] payable by deduction from any amount received in connection
from such [Initial][Secondary] Remarketing in excess of the [Minimum Initial
Remarketing 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
17
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.
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 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 Electronic Data Systems Corporation, 0000 Xxxxxx
Xxxxx, Xxxxx, Xxxxx, 00000-0000, Attention: Chief Financial Officer; if to the
Remarketing Agent or Reset Agent, to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, at World Financial Center, Xxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxx Xxxxxxxx, with a copy to Shearman & Sterling,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx III; and
if to the Purchase Contract Agent, to The Chase Manhattan Bank,
_______________________________, 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),
18
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 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 Remarketing Agent.
Very truly yours,
ELECTRONIC DATA SYSTEMS CORPORATION
By:
-------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------------
Authorized Signatory
[Add other Remarketing Agents, if any]
00
XXX XXXXX XXXXXXXXX BANK
not individually but solely as Purchase Contract
Agent and as attorney-in-fact for the holders of
the Purchase Contracts
By:
-----------------------------
Name:
Title:
20
SCHEDULE I
Securities subject to the remarketing: Senior Notes due August 17, 2006 of the
Company (the "Securities").
Purchase Contract Agreement, dated as of June, 2001 (the "Purchase Contract
Agreement") by and between Electronic Data Systems Corporation, a Delaware
corporation, and The Chase Manhattan Bank, a New York banking corporation.
Pledge Agreement dated as of June, 2001 (the "Pledge Agreement") by and between
Electronic Data Systems Corporation, a Delaware corporation, First Union
Trust Company, National Association, a national banking association, and
The Chase Manhattan Bank.
Indenture dated as of August 12, 1996 (the "Base Indenture") by and between
Electronic Data Systems Corporation, a Delaware corporation, and Chase Bank
of Texas National Association.
Supplemental Indenture, dated as of June, 2001 (the "Supplemental Indenture"
and, together with the Base Indenture, the "Indenture") by and between
Electronic Data Systems Corporation, a Delaware corporation, and Chase Bank
of Texas, National Association.
[Minimum Initial Remarketing Price]
[Aggregate Principal Amount of Securities: $ ____________]
Underwriting Agreement, dated June, 2001 (the "Underwriting Agreement") among
Electronic Data Systems Corporation and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx Barney Inc., Credit
Suisse First Boston Corporation and the other underwriters named therein.
Remarketing Closing Date, Time and Location:
21
