EXHIBIT 1(b)
UtiliCorp United Inc.
Trust Preferred Securities
September 29, 1999
XXXXXX XXXXXXX & CO. INCORPORATED
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Xxxxxxx & Co. Incorporated (the "Remarketing Agent") is
undertaking to remarket the 7.35% Trust Preferred Securities due November 16,
2004 (the "Trust Preferred Securities"), issued by UCU Capital Trust I, a
Delaware business trust (the "Trust"), pursuant to Amended and Restated
Declaration of Trust ("Declaration"), dated as of September 29, 1999 by and
among UtiliCorp United Inc., a Delaware corporation (the "Company"), as
Sponsor, Xxxx X. Xxxx, Xxxxx X. Xxxxxxxxx, and Xxxxxxx X. Xxxxx, as the
initial Regular Trustees, Bank One Trust Company, NA, as the initial Property
Trustee, and Bank One Delaware, Inc., as the initial Delaware Trustee, not in
their individual capacities but solely as Trustees, and the Holders, from
time to time, of the Securities representing undivided beneficial ownership
interests in the assets of the Trust to be issued pursuant to the
Declaration.
The Remarketing (as defined below) of the Trust Preferred
Securities is provided for in the Declaration, the Pledge Agreement and the
Purchase Contract Agreement (as defined below).
If a liquidation and dissolution of the Trust shall have occurred
prior to the Purchase Contract Settlement Date and the Senior Deferrable
Notes have been distributed to the holders of the Trust Preferred Securities
all references herein to "Trust Preferred Securities" shall instead be
references to "Senior Deferrable Notes" and references to "Remarketed Trust
Preferred Securities" shall instead be references to "Remarketed Senior
Deferrable Notes", unless the context otherwise requires.
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Section 1. DEFINITIONS.
(a) Capitalized terms used and not defined in this Agreement shall
have the meanings set forth in the Purchase Contract Agreement, dated as of
September 29, 1999 (the "Purchase Contract Agreement"), between the Company
and Bank One Trust Company, NA, as Purchase Contract Agent (the "Purchase
Contract Agent").
(b) As used in this Agreement, the following terms have the
following meanings:
"Remarketed Trust Preferred Securities" means the Trust Preferred
Securities subject to the Remarketing, as identified to the Remarketing Agent
by the Purchase Contract Agent after 11:00 a.m. on the fifth Business Day
immediately preceding November 16, 2002;
"Remarketing Procedures" means the procedures in connection with
the Remarketing of the Trust Preferred Securities described in the Purchase
Contract Agreement, the Pledge Agreement and the Declaration, as the case may
be; and
"Remarketing" means the remarketing of the Remarketed Trust
Preferred Securities pursuant to the Remarketing Procedures.
Section 2. APPOINTMENT AND OBLIGATIONS OF THE REMARKETING AGENT.
(a) The Company hereby appoints Xxxxxx Xxxxxxx & Co. Incorporated
as exclusive remarketing agent (the "Remarketing Agent"), and Xxxxxx Xxxxxxx
& Co. Incorporated hereby (A) accepts appointment as Remarketing Agent, for
the purpose of (1) Remarketing Remarketed Trust Preferred Securities on
behalf of the holders thereof and (2) performing such other duties as are
assigned to the Remarketing Agent in the Remarketing Procedures, all in
accordance with and pursuant to the Remarketing Procedures, and (B) accepts
and will perform all obligations set forth in the Declaration, the Pledge
Agreement and the Purchase Contract Agreement.
(b) The Remarketing Agent agrees to (1) use reasonable efforts to
remarket the Remarketed Trust Preferred Securities tendered or deemed
tendered to the Remarketing Agent in the Remarketing, (2) notify the Company,
the Depository and the Indenture Trustee promptly of the Reset Rate and (3)
carry out such other duties as are assigned to the Remarketing Agent in the
Remarketing Procedures, all in accordance with the provisions of the
Remarketing Procedures.
(c) On the third Business Day immediately preceding the Purchase
Contract Settlement Date (the "Remarketing Date"), the Remarketing Agent
shall use commercially reasonable efforts to remarket, the Trust Preferred
Securities tendered or deemed tendered for purchase at a price at least equal
to 100.25% of the aggregate stated liquidation amount thereof.
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(d) If, as a result of the efforts described in 2(c), the
Remarketing Agent has determined that it will be able to remarket all of the
Preferred Securities tendered or deemed tendered for purchase at a price of
100.25% of the aggregate stated liquidation amount of such Preferred
Securities, the Remarketing Agent shall determine the Reset Rate, which shall
be the rate per annum (rounded to the nearest one-thousandth (0.001) of one
percent per annum) sufficient to cause the then current aggregate market
value of the Preferred Securities to be at least equal to 100.25% of the
aggregate stated liquidation amount of such Preferred Securities, that the
Remarketing Agent determines, in its sole reasonable judgment, to be the
lowest rate per annum that will enable it to remarket all of the Preferred
Securities tendered or deemed tendered for Remarketing.
(e) If none of the Holders of the Preferred Securities or the
holders of the PEPS Units elect to have Preferred Securities remarketed in
the Remarketing, the Reset Rate shall be the rate determined by the
Remarketing Agent, in its sole reasonable discretion, as the rate that would
have been established had a Remarketing been held on the Remarketing Date.
(f) Upon receipt of the proceeds from the Remarketing, the
Remarketing Agent shall: (1) retain $.0625 per Remarketed Trust Preferred
Security for the performance of its services as Remarketing Agent hereunder;
and (2) remit to the Collateral Agent all excess proceeds of the Remarketed
Trust Preferred Securities subject to the Pledge Agreement.
(g) The Remarketing Agent shall submit at least one Trust
Preferred Security to the Remarketing to ensure that there is a Remarketing.
(h) If, by 4:00 p.m., New York City time, on the Remarketing Date,
the Remarketing Agent is unable to remarket all of the Trust Preferred
Securities tendered or deemed tendered for purchase, a Failed Remarketing
shall be deemed to have occurred, and the Remarketing Agent shall so advise
by telephone the Depository, the Property Trustee, the Trust and the Company.
In the event of a Failed Remarketing, the Reset Rate shall equal the Two
Year Benchmark Treasury Rate plus the Applicable Margin.
(i) By approximately 4:30 p.m. New York City time on the
Remarketing Date (provided there has not been a Failed Remarketing), the
Remarketing Agent shall advise, by telephone:
(1) the Depository, the Property Trustee, the Indenture Trustee,
the Trust and the Company of the Reset Rate determined in the
Remarketing and the number of Remarketed Trust Preferred Securities
sold in the Remarketing;
(2) each purchaser (or the Depositary Participant thereof) of
Remarketed Trust Preferred Securities of the Reset Rate and the number
of Remarketed Trust Preferred Securities such purchaser is to purchase;
and
(3) each purchaser to give instructions to its Depositary
Participant to pay
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the purchase price on the Purchase Contract Settlement Date in same day
funds against delivery of the Remarketed Trust Preferred Securities
purchased through the facilities of the Depository.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
TRUST.
The Company and the Trust jointly and severally represent and
warrant (i) on and as of the date hereof, (ii) on and as of the date the
Prospectus or other Remarketing Materials (each as defined in Section 3(a)
below) are first distributed in connection with the Remarketing (the
"Commencement Date"), (iii) on and as of the Remarketing Date, and (iv) on
and as of the Purchase Contract Settlement Date that:
(a) A registration statement (File No. 333-86299) in respect of
the initial offering of the Trust Preferred Securities has been filed with
the Securities and Exchange Commission (the "Commission") on Form S-3; a
registration statement on Form S-3, if required in connection with the
Remarketing also may be prepared by the Company; the last of such
registration statement including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in such registration
statement at the time such part of such registration statement became
effective but excluding each Form T-1 filed in connection therewith, and any
post-effective amendment thereto is referred to herein as the "Registration
Statement"; the Registration Statement, in the form heretofore delivered or
to be delivered to the Remarketing Agent, excluding exhibits, but including
all documents incorporated by reference in the prospectus contained therein,
has been declared effective by the Commission in such form; and no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission; any preliminary prospectus included in the Registration Statement
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Securities Act of 1933, as amended
(the "Act"), being hereinafter called a "Preliminary Prospectus"; the
prospectus relating to the Trust Preferred Securities, in the form in which
first filed, or transmitted for filing, with the Commission after the
effective date of the Registration Statement pursuant to Rule 424(b), being
hereinafter called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the applicable form
under the Act, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; any reference to
any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement; and
any reference to the Prospectus as amended or supplemented shall be deemed to
refer to the Prospectus as amended or supplemented
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in relation to the applicable Trust Preferred Securities in the form in which
it is filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing.
Reference made herein to any Preliminary Prospectus, the Prospectus
or any other information furnished by the Company to the Remarketing Agent
for distribution to investors in connection with the Remarketing (the
"Remarketing Materials") shall be deemed to refer to and include any
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act as of the date of such Preliminary Prospectus or the
Prospectus, as the case may be, or, in the case of Remarketing Materials,
referred to as incorporated by reference therein, and any reference to any
amendment or supplement to any Preliminary Prospectus, the Prospectus or the
Remarketing Materials shall be deemed to refer to and include any document
filed under the Exchange Act, after the date of such Preliminary Prospectus
or the Prospectus incorporated by reference therein pursuant to Item 12 of
Form S-3 or, if so incorporated, the Remarketing Materials, as the case may
be;
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to the Company by the Remarketing Agent or the Underwriter of Trust Preferred
Securities expressly for use in the Prospectus;
(c) The Registration Statement conforms (and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus, when they become effective or are filed with the Commission, as the
case may be, will conform) in all material respects to the requirements of the
Act and the rules and regulations promulgated thereunder, and the Registration
Statement, the Prospectus and the Remarketing Materials (and any amendment or
supplement thereto) as of their respective effective or filing dates and as of
the Commencement Date, Remarketing Date and Purchase Contract Settlement Date do
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
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statements therein not misleading; PROVIDED that no representation and
warranty is made as to any statement of eligibility on Form T-1 filed or
incorporated by reference as part of the Registration Statement, the
Prospectus or the Remarketing Materials, or as to information contained in or
omitted from the Registration Statement, the Prospectus or the Remarketing
Materials in reliance upon and in conformity with written information
furnished to the Company by the Remarketing Agent;
(d) The Trust has no subsidiaries. Neither the Trust nor the
Company (including all of its subsidiaries taken as a whole, each a
"Subsidiary" and, collectively, the "Subsidiaries") has incurred any
liability or obligation, direct or contingent, or entered into any
transaction, not in the ordinary course of business, that is material to the
Trust or the Company and its Subsidiaries taken as a whole, or sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been any
material change in the capital stock, or material increase in the short-term
debt or long-term debt, of the Company or any of its Subsidiaries or any
material adverse change, or any development involving, or which may
reasonably be expected to involve, a prospective material adverse change in
or affecting the condition (financial or other), results of operations,
business, prospects, net worth or assets of the Company and its Subsidiaries
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus;
(e) This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a legal, valid and binding
obligation of the Company, enforceable in accordance with its terms, except
as the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws
relating to or affecting the enforcement of creditors' rights and remedies
generally, as from time to time in effect, and by applicable principles of
equity and considerations of public policy (regardless of whether
enforceability is considered in a proceeding in equity or at law); and this
Agreement conforms to the description thereof in the Remarketing Materials;
(f) Each of the Company and its Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with full power and authority
(corporate and other) to own or lease its properties and conduct its business as
described in the Remarketing Materials, and is duly qualified to do business and
is in good standing in each jurisdiction in which the character of the business
conducted by it or the location of the properties owned or leased by it makes
such qualification necessary. All of the shares of capital stock of each
Subsidiary have been duly authorized and validly issued, are fully paid and
nonassessable. Except as set forth in the Remarketing Materials, all of the
outstanding shares of capital stock of each Subsidiary are owned directly or
indirectly by the
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Company, free and clear of any claim, lien, encumbrance or security interest;
(g) The Indenture and the Senior Deferrable Notes issued
thereunder, have been duly authorized, executed and delivered and constitute
valid and legally binding obligations of the Company enforceable in
accordance with their terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws relating to or affecting the enforcement of
creditors' rights and remedies generally, as from time to time in effect, and
by applicable principles of equity and considerations of public policy
(regardless of whether enforceability is considered in a proceeding in equity
or at law); and the Indenture and the Senior Deferrable Notes conform to the
description thereof in the Remarketing Materials;
(h) Each of the Guarantee and the Guarantee Agreement has been
duly authorized, executed and delivered by the Company constitutes a legal,
valid and binding obligation of the Company, enforceable in accordance with
its terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws relating to or affecting the enforcement of creditors' rights
generally and general principles of equity and considerations of public
policy (regardless of whether enforceability is sought in a proceeding in
equity or at law); and the Guarantee conforms to the description thereof in
the Remarketing Materials;
(i) Neither the Company nor any of its Subsidiaries is, nor with
the giving of notice or lapse of time or both would be, in violation of or in
default under, nor will the execution, delivery and performance by the
Company of its obligations under, this Agreement, the Amended Declaration,
the Guarantee Agreement and the Indenture and the consummation of the
transactions (the "Transactions") contemplated in this Agreement, the Amended
Declaration, the Guarantee, the Indenture, nor will compliance by the Company
with its obligations under this Agreement, the Amended Declaration, the
Guarantee Agreement and the Indenture, result in a violation of, or
constitute a default under, (1) the certificate of incorporation, by-laws or
other governing documents of the Company or any of its Subsidiaries, (2) any
agreement, indenture or other instrument to which the Company or any of its
Subsidiaries is a party or by which any of them is bound, or to which any of
their properties is subject, or (3) any law, rule, administrative regulation
or decree of any court or any governmental agency or body having jurisdiction
over the Company, its Subsidiaries or any of their properties, or result in
the creation or imposition of any lien, charge, claim or encumbrance upon any
property or asset of the Company or any of its Subsidiaries which would be
material to the Company and its Subsidiaries taken as a whole. Except for
permits and similar authorizations required under the Act, the Trust
Indenture Act, the Federal Power Act, the laws of the States of Colorado and
West Virginia and the securities or Blue Sky laws of certain jurisdictions,
and except for such permits and authorizations as have been obtained, no
consent, approval, authorization or order of any court, governmental agency
or body or financial institution is required for the Guarantee or the
consummation of the Transactions;
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(j) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of the
State of Delaware (the "Delaware Trust Act") with the trust power and
authority to own property and conduct its business as described in the
Remarketing Materials, and has conducted and will conduct no business other
than the transactions contemplated by this Agreement as described in the
Remarketing Materials; the Trust is not a party to or bound by any agreement
or instrument other than this Agreement, the Amended Declaration and the
other agreements entered into in connection with the transactions
contemplated hereby; the Trust has no liabilities or obligations other than
those arising out of the transactions contemplated by this Agreement and the
Amended Declaration and described in the Remarketing Materials; and the Trust
is not a party to or subject to any action, suit or proceeding of any nature;
(k) The Amended Declaration has been duly authorized by the
Company, as Sponsor, and executed and delivered by the Company, as Sponsor,
and the Regular Trustees (assuming due authorization, execution and delivery
by the Property Trustee and the Delaware Trustee), and constitutes a legal,
valid and binding obligation of the Trust, enforceable against the Trust in
accordance with its terms, except as the enforceability thereof may be
limited by the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general principles of equity and considerations
of public policy (regardless of whether considered in a proceeding in equity
or at law), and conforms to the description thereof contained in the
Remarketing Materials;
(l) The Trust Securities have been duly authorized, validly
issued, fully paid and are non-assessable and conform to the descriptions
contained in the Remarketing Materials;
(m) This Agreement has been duly authorized by the Trust and will
be, when delivered by the Trust, duly executed and delivered by the Trust;
(n) The Trust is not, nor with the giving of notice or lapse of
time or both would be, in violation of or in default under, nor will the
execution, delivery and performance by the Trust of its obligations under
this Agreement, and the consummation by the Trust of the transactions
contemplated herein and in the Amended Declaration (the "Trust
Transactions"), result in a violation of any statute or order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Trust or any of its assets. Except for permits and similar
authorizations required under the Act, the qualification of the Amended
Declaration under the Trust Indenture Act, the Exchange Act, the Federal
Power Act, the laws of the States of Colorado and West Virginia and the
securities or Blue Sky laws of certain jurisdictions, and except for such
permits and authorizations as have been obtained, no consent, approval,
authorization or order of any court, governmental agency or body or financial
institution is required for the consummation of the Trust Transactions;
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(o) The Trust, the Company and its Subsidiaries have good and
marketable title to all material real and personal property owned by them, in
each case free and clear of all mortgages, liens, encumbrances and defects,
except such as are described or referred to in the Remarketing Materials, or
such as do not materially affect the values of such property and do not
interfere with the use made or proposed to be made of such property by the
Trust or the Company or such Subsidiaries; and any real property and
buildings held under lease by the Trust and the Company and its Subsidiaries
are held by them under valid, existing and enforceable leases with such
exceptions as are not material and do not interfere with the use made or
proposed to be made of such property and buildings by the Trust and the
Company or such Subsidiaries;
(p) Except as described in the Remarketing Materials, there is no
litigation or governmental proceeding to which the Trust or the Company or
any of its Subsidiaries is a party or to which any property of the Trust, or
the Company or any of its Subsidiaries is subject or which is pending or, to
the knowledge of the Trust or the Company, contemplated against the Trust or
the Company or any of its Subsidiaries which might result in any material
adverse change in the condition (financial or other), results of operations,
business, prospects, net worth or assets of the Trust and the Company and its
Subsidiaries taken as a whole;
(q) The Trust, the Company and its Subsidiaries are not in
violation of any law, ordinance, governmental rule or regulation or court
decree to which it is subject which violation would have a material adverse
effect on the condition (financial or other), results of operations,
business, prospects, net worth or assets of the Trust and the Company and its
Subsidiaries taken as a whole;
(r) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific authorizations;
(B) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and (D) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences;
(s) The accountants who have audited and reported upon the
financial statements filed most recently with the Commission are independent
accountants as required by the Act and the regulations thereunder. The
consolidated financial statements and schedules (including the related notes)
included or incorporated by reference in the Remarketing Materials, fairly
present the consolidated financial position, the results of operations and
changes in financial condition of the entity or entities to which such
statements relate at the respective dates and for the respective periods to
which they apply. Such financial statements have been prepared in accordance
with generally accepted accounting principles consistently applied, except as
set forth in the
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Remarketing Materials. The other financial and statistical information and
data set forth in the Remarketing Materials, are fairly presented and have
been prepared on a basis consistent with such financial statements and the
books and records of the entities purported to be shown thereby;
(t) Neither the Trust nor the Company is an "investment company"
required to register under, or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended, nor will be
required to so register, nor will be such after giving effect to the
transactions contemplated hereby; and
(u) The certificate delivered pursuant to paragraph (e) of Section
6 hereof and all other documents delivered by the Company or its
representatives in connection with the issuance and sale of the Remarketed
Trust Preferred Securities were on the dates on which they were delivered, or
will be on the dates on which they are to be delivered, in all material
respects true and complete.
Section 4. FEES.
For the performance of its services as Remarketing Agent hereunder,
the Remarketing Agent shall retain from the proceeds of the Remarketing an
amount equal to .25% of the $25 Stated Amount of all Remarketed Trust
Preferred Securities.
Section 5. COVENANTS OF THE COMPANY.
The Company covenants and agrees as follows:
(a) (1) To prepare any registration statement or the Prospectus,
if required in connection with the Remarketing, in a form approved by
the Remarketing Agent and to file any such prospectus pursuant to the
Securities Act within the period required by the Act and the rules and
regulations thereunder;
(2) to advise the Remarketing Agent, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Remarketing Agent with copies thereof;
(3) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Remarketed Trust Preferred Securities;
(4) to advise the Remarketing Agent, promptly after it receives
notice
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thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of the Prospectus, of the
suspension of the qualification of any of the Remarketed Trust Preferred
Securities for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information, and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal.
(b) To furnish promptly to the Remarketing Agent and to counsel to
the Remarketing Agent a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed
therewith.
(c) To furnish to the Remarketing Agent in New York City such
copies of the following documents as the Remarketing Agent shall
reasonably request (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in each
case excluding exhibits); (ii) the Prospectus and any amended or
supplemented Prospectus; (iii) any document incorporated by reference in
the Prospectus (excluding exhibits thereto); and (iv) any Remarketing
Materials; and, if the delivery of a prospectus is required at any time
in connection with the Remarketing and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Securities Act or the Exchange Act, to notify the Remarketing
Agent and, upon its request, to file such document and to prepare and
furnish without charge to the Remarketing Agent and to any dealer in
securities as many copies as the Remarketing Agent may from time to time
reasonably request of an amended or supplemented Prospectus which will
correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Remarketing
Agent, be required by the Securities Act or requested by the Commission.
(e) Prior to filing with the Commission (i) any amendment to the
Registration Statement or supplement to the Prospectus or (ii) any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a
copy thereof to the
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Remarketing Agent and counsel to the Remarketing Agent; and not to file
any such amendment or supplement which shall be reasonably disapproved
by the Remarketing Agent promptly after reasonable notice.
(f) As soon as practicable, but in any event not later than
eighteen months, after the Effective Date of the Registration Statement,
to make "generally available to its security holders" an "earnings
statement" of the Company and its Subsidiaries complying with (which
need not be audited) Section 11(a) of the Securities Act and the Rules
and Regulations (including, at the option of the Company, Rule 158).
The terms "generally available to its security holders" and "earnings
statement" shall have the meanings set forth in Rule 158 of the Rules
and Regulations.
(g) To take such action as the Remarketing Agent may reasonably
request in order to qualify the Remarketed Trust Preferred Securities
for offer and sale under the securities or "blue sky" laws of such
jurisdictions as the Remarketing Agent may reasonably request; provided
that in no event shall the Company be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
(h) To pay (1) the costs incident to the preparation and printing
of the Registration Statement, Prospectus and any Remarketing Materials
and any amendments or supplements thereto; (2) the costs of distributing
the Registration Statement, Prospectus and any Remarketing Materials and
any amendments or supplements thereto; (3) the fees and expenses of
qualifying the Remarketed Trust Preferred Securities under the
securities laws of the several jurisdictions as provided in Section 5(g)
and of preparing, printing and distributing a Blue Sky Memorandum
(including related fees and expenses of counsel to the Remarketing
Agent); (4) all other costs and expenses incident to the performance of
the obligations of the Company, hereunder; and (5) the reasonable fees
and expenses of counsel to the Remarketing Agent in connection with
their duties hereunder.
Section 6. CONDITIONS TO THE REMARKETING AGENT'S OBLIGATIONS.
The obligations of the Remarketing Agent hereunder are subject to
the following conditions:
(a) The Prospectus shall have been timely filed with the
Commission; no stop order suspending the effectiveness of the
Registration Statement or any part thereof or suspending the
qualification of the Indenture shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus
or otherwise shall have been complied with.
(b) The Remarketing Agent shall not have discovered and disclosed to
the
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Company prior to or on the Remarketing Date that the Prospectus, the
Registration Statement, or the Remarketing Materials or any amendment or
supplement thereto contains any untrue statement of a fact which, in the
opinion of counsel for the Remarketing Agent, is material or omits to
state any fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements
therein not misleading.
(c) Since the respective dates as of which information is given in
the Remarketing Materials (i) trading in securities generally on the New
York Stock Exchange, the American Stock Exchange, the Nasdaq National
Market or in the over-the-counter market, or trading in any securities of
the Company on any exchange or in the over-the-counter market, shall have
been suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state
authorities, (iii) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions so as in each case described in (i), (ii), (iii) and
(iv) above to make it, in the judgment of the Remarketing Agent,
impracticable or materially inadvisable to proceed with the Remarketing at
the times and on the terms and in the manner contemplated in the Prospectus
and in the Remarketing Materials.
(d) The representations and warranties of the Company contained
herein shall be true and correct in all material respects on and as of
the Remarketing Date, and the Company shall have performed in all
material respects all covenants and agreements herein contained to be
performed on its part at or prior to the Remarketing Date.
(e) The Company shall have furnished to the Remarketing Agent a
certificate, dated the Remarketing Date, of the Chief Executive Officer
and the Treasurer satisfactory to the Remarketing Agent stating that:
(i) no order suspending the effectiveness of the Registration Statement
or prohibiting the sale of the Remarketed Trust Preferred Securities is
in effect, and no proceedings for such purpose are pending before or, to
the knowledge of such officers, threatened by the Commission; (ii) the
representations and warranties of the Company in Section 3 are true and
correct in all material respects on and as of the Remarketing Date and
the Company has performed in all material respects all covenants and
agreements contained herein to be performed on its part at or prior to
the Remarketing Date; (iii) the Registration Statement, as of its
Effective Date, and the Prospectus and the Remarketing Materials, as of
their respective dates, did not contain any untrue statement of a
material fact and did not omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading.
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(f) On the Remarketing Date, the Remarketing Agent shall have
received a letter addressed to the Remarketing Agent and dated such
date, in form and substance satisfactory to the Remarketing Agent, of
Xxxxxx Xxxxxxxx LLP, containing statements and information of the type
ordinarily included in accountants' "comfort letters" with respect to
certain financial information contained in the Prospectus and in the
Remarketing Materials.
(g) Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP, counsel to the Company,
shall have furnished to the Remarketing Agent its opinion letter or
opinion letters, as the case may be, addressed to the Remarketing Agent
and dated the Remarketing Date, in form and substance satisfactory to
the Remarketing Agent addressing such matters as are set forth in such
counsel's opinion furnished pursuant to Section 7(c) of the Underwriting
Agreement dated September 23, 1999 among the Company, the Trust and the
Underwriters named herein relating to 10,000,000 9 3/4% Premium Equity
Participating Securities Units--PEPS-SM- Units, adapted as necessary to
relate to the securities being remarketed hereunder and to the
Remarketing Materials;
(h) Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for the
Remarketing Agent, shall have furnished to the Remarketing Agent its
opinion, addressed to the Remarketing Agent and dated the Remarketing
Date, in form and substance satisfactory to the Remarketing Agent;
(i) On or after the execution and delivery of this Agreement, no
downgrading shall have occurred in the rating accorded the Company's debt
securities or preference stock by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act.
Section 7. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless the Remarketing
Agent and each person, if any, who controls the Remarketing Agent within the
meaning of Section 15 of the Securities Act against any losses, claims,
damages or liabilities, joint or several, (including any investigative, legal
and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted) to which
they may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Remarketing Materials,
the Prospectus as amended or supplemented and any other prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
provided, however, that the Company shall not be liable in any such case to
the extent that any such
14
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
(1) in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Remarketing Materials, the Prospectus as amended
or supplemented and any other prospectus relating to the Securities, or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Remarketing Agent
for use in the Prospectus as amended or supplemented relating to such
Securities or the Registration Statement.
(b) The Remarketing Agent will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended
or supplemented and any other prospectus, or any amendment or supplement
thereto or any Remarketing Materials, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such
Remarketing Agent; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating
or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under Section
7(a) or 7(b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation.
15
(d) The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
Section 8. CONTRIBUTION.
(a) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 7(a) or 7(b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Remarketing
Agent on the other from the Remarketing to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Remarketing Agent on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Remarketing Agent on the
other shall be deemed to be in the same proportion as the total principal
amount of Remarketed Trust Preferred Securities less the fee to be paid to
the Remarketing Agent pursuant to Section 4 on the other hand, bear to the
total principal amount of the Remarketed Trust Preferred Securities. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Remarketing Agent on the
16
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and the Remarketing Agent agree that it would not be just and equitable if
contribution pursuant to this subsection (d) 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 subsection (d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), the Remarketing Agent shall not be
required to contribute any amount in excess of the amount by which the fees
received by it under Section 4 exceeds the amount of any damages which such
Remarketing Agent has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(b) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls the Remarketing Agent within the meaning of the Act; and the
obligations of the Remarketing Agent under this Section 8 shall be in
addition to any liability which the Remarketing Agent may otherwise have and
shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any who controls the Company
within the meaning of the Act.
Section 9. RESIGNATION AND REMOVAL OF THE REMARKETING AGENT.
The Remarketing Agent may resign and be discharged from its duties
and obligations hereunder, and the Company or the Trust may remove the
Remarketing Agent, by giving 60 days' prior written notice, in the case of a
resignation, to the Company, the Depository, the Property Trustee, the Trust
and the Indenture Trustee and, in the case of a removal, the removed
Remarketing Agent, the Depository, the Property Trustee, the Trust and the
Indenture Trustee; provided, however, that:
(i) the Company may not remove the Remarketing Agent unless (A)
the Remarketing Agent becomes involved as a debtor in a bankruptcy,
insolvency or similar proceeding, (B) the Remarketing Agent shall not be
among the 15 underwriters with the largest volume underwritten in
dollars, on a lead or co-managed basis, of U.S. domestic debt securities
during the twelve-month period ended as of the last calendar quarter
preceding the Remarketing Date, (C) the Remarketing Agent shall be
subject to one or more legal restrictions preventing the performance of
its obligations hereunder, or (D) the Remarketing Agent shall determine
that (I) the Company has not met its obligation under Section 6(c) or
(II) using its reasonable efforts, the Remarketing Agent would be
17
unable to consummate the Remarketing on the terms and in the manner
contemplated in the Prospectus and the Remarketing Materials; and
(ii) no such resignation nor any such removal shall become
effective until the Company shall have appointed at least one nationally
recognized broker-dealer as successor Remarketing Agent and such
successor Remarketing Agent shall have entered into a with the Company, in which it shall have agreed to conduct the
Remarketing in accordance with the Remarketing Procedures in all
material respects.
In any such case, the Company will use its reasonable efforts to appoint a
successor Remarketing Agent and enter into such a with
such person as soon as reasonably practicable. The provisions of Sections 7
and 8 shall survive the resignation or removal of any Remarketing Agent
pursuant to this Agreement.
Section 10. DEALING IN THE REMARKETED TRUST PREFERRED SECURITIES.
The Remarketing Agent, when acting as a Remarketing Agent or in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold and deal in any of the Remarketed Trust Preferred Securities. The
Remarketing Agent may exercise any vote or join in any action which any
beneficial owner of Remarketed Trust Preferred Securities may be entitled to
exercise or take pursuant to the Declaration with like effect as if it did
not act in any capacity hereunder. The Remarketing Agent, in its individual
capacity, either as principal or agent, may also engage in or have an
interest in any financial or other transaction with the Company as freely as
if it did not act in any capacity hereunder.
Section 11. REMARKETING AGENT'S PERFORMANCE; DUTY OF CARE.
The duties and obligations of the Remarketing Agent shall be
determined solely by the express provisions of this Agreement, the
Declaration, the Pledge Agreement and the Purchase Contract Agreement. No
implied covenants or obligations of or against the Remarketing Agent shall be
read into this Agreement, the Declaration, the Pledge Agreement or the
Purchase Contract Agreement. In the absence of bad faith on the part of the
Remarketing Agent, the Remarketing Agent may conclusively rely upon any
document furnished to it, as to the truth of the statements expressed in any
of such documents. The Remarketing Agent shall be protected in acting upon
any document or communication reasonably believed by it to have been signed,
presented or made by the proper party or parties except as otherwise set
forth herein. The Remarketing Agent, acting under this Agreement, shall
incur no liability to the Company, the Trust or to any holder of Remarketed
Trust Preferred Securities in its individual capacity or as Remarketing Agent
for any action or failure to act, on its part in connection with a
Remarketing or otherwise, except if such liability is judicially determined
to have resulted from the negligence or willful misconduct on its part.
Section 12. TERMINATION.
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This Agreement shall terminate as to the Remarketing Agent on the
effective date of the resignation or removal of the Remarketing Agent
pursuant to Section 9. In addition, this Agreement may be terminated (A) by
the Company or the Trust by notifying the Remarketing Agent at any time
before the time when the Remarketed Trust Preferred Securities are first
generally offered by the Remarketing Agent to dealers by letter or telegram,
or (B) by the Remarketing Agent by notifying the Company and the Trust at or
prior to 10:00 a.m. (New York City time) on the Remarketing Date by letter or
telegram if any of the conditions described in Section 6 are not satisfied.
If this Agreement is terminated pursuant to any of the provisions
hereof, except as otherwise provided herein, the Company shall not be under
any liability to the Remarketing Agent and the Remarketing Agent shall not be
under any liability to the Company, except that (a) if this Agreement is
terminated by the Remarketing Agent because of any failure or refusal on the
part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, the Company will reimburse the Remarking Agent
for all of its out-of-pocket expenses (including the fees and disbursements
of its counsel) reasonably incurred by it, and (b) if the Remarketing Agent
failed or refused to purchase the Remarketed Trust Preferred Securities
hereunder, without some reason sufficient hereunder to justify the
cancellation or termination of if obligations hereunder, the Remarketing
Agent shall not be relieved of liability to the Company for damages
occasioned by its default.
Section 13. NOTICES.
All statements, requests, notices and agreements hereunder shall be
in writing, and:
(a) if to the Remarketing Agent, shall be delivered or sent by
mail, telex or facsimile transmission to Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx
Xxxxxxx (fax: 000-000-0000);
(b) if to the Company, shall be delivered or sent by mail, telex
or facsimile transmission to 00 X. Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx
00000, Attention: Treasurer. (Fax: 000-000-0000).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
Section 14. PERSONS ENTITLED TO BENEFIT OF AGREEMENT.
This Agreement shall inure to the benefit of and be binding upon the
Remarketing Agent, the Company, the Trust and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (x) the representations, warranties, indemnities and
agreements of the Company contained in this Agreement shall also be deemed to be
for the benefit of the
19
Remarketing Agent and the person or persons, if any, who control the
Remarketing Agent within the meaning of Section 15 of the Securities Act and
(y) the indemnity agreement of the Remarketing Agent contained in Section
7(b) of this Agreement shall be deemed to be for the benefit of the Company's
and the Trust's directors, officers and Trustees who sign the Registration
Statement and any person controlling the Company or the Trust within the
meaning of Section 15 of the Securities Act. Nothing contained in this
Agreement is intended or shall be construed to give any person, other than
the persons referred to herein, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
Section 15. SURVIVAL.
The respective indemnities, representations, warranties and
agreements of the Company and the Remarketing Agent contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the Remarketing and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any of them
or any person controlling any of them.
Section 16. GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance
with, the laws of New York.
Section 17. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each
be deemed to be an original but all such counterparts shall together
constitute one and the same instrument.
Section 18. HEADINGS.
The headings herein are inserted for convenience of reference only
and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the
Company, the Trust and the Remarketing Agent, please indicate your acceptance
in the space provided for that purpose below.
[SIGNATURES ON THE FOLLOWING PAGE]
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Very truly yours,
UTILICORP UNITED INC.
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: Vice President, Finance,
Secretary and Treasurer
UCU CAPITAL TRUST I
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: Regular Trustee
Accepted:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxx XX
---------------------------
Name: Xxxxxxx X. Xxxxxx XX
Title: Managing Director
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