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EXHIBIT 4.7
, dated as of December 23, 1997 (the ""), among CP Limited Partnership, a Maryland Limited Partnership (the
"Operating Partnership"), Chateau Communities, Inc., a Maryland corporation (the
"Company"), and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx
Xxxxx" and, in its capacity as the remarketing dealer hereunder, the
"Remarketing Dealer").
WHEREAS, the Operating Partnership has issued $100,000,000 aggregate
principal amount of its 6.92% MandatOry Par Put Remarketed SecuritiesSM (the
"MOPPRSSM")(1) due December 10, 2014, pursuant to an indenture, dated as of
December 19, 1997, as supplemented by a Supplemental Indenture relating to the
MOPPRS (together, the "Indenture"), between the Operating Partnership and The
First National Bank of Chicago, as trustee (the "Trustee"); and
WHEREAS, the MOPPRS have been sold and delivered initially pursuant to an
underwriting agreement, dated December 18, 1997, among the Company, the
Operating Partnership and Xxxxxxx Xxxxx as supplemented by a terms agreement
dated December 18, 1997 between the Operating Partnership and Xxxxxxx Xxxxx
(together, the "Underwriting Agreement"); and
WHEREAS, the Company and the Operating Partnership have filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (No. 333-4544) under the Securities Act of 1933, as amended (the
"1933 Act"), in connection with the offering of, among other securities, Debt
Securities, including the MOPPRS, of the Operating Partnership, which
registration statement was declared effective by order of the Commission on
August 14, 1997, and a related registration statement filed pursuant to Rule
462(b) of the rules and regulations under the 1933 Act (the "1933 Act
Regulations"), which registration statement became effective pursuant to Rule
462(b) on November 21, 1997, and have filed such amendments thereto and such
amended prospectuses as may have been required to the date hereof, and will file
such additional amendments thereto and such additional amended prospectuses as
may hereafter be required; and
WHEREAS, Xxxxxxx Xxxxx is prepared to act as the Remarketing Dealer with
respect to the remarketing of the MOPPRS on December 10, 2004 (the "Remarketing
Date") pursuant to the terms of, but subject to the conditions set forth in,
this Agreement;
NOW, THEREFORE, for and in consideration of the covenants herein made, and
subject to the conditions herein set forth, the parties hereto agree as follows:
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(1) "MandatOry Par Put Remarketed SecuritiesSM" and "MOPPRSSM" are service marks
owned by Xxxxxxx Xxxxx & Co.
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Section 1. Definitions. (a) Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Indenture (including
the form of the MOPPRS).
Section 2. Representations and Warranties. (a) Each of the Operating
Partnership and the Company represents and warrants to the Remarketing Dealer as
of the date hereof, the Notification Date (as defined below), the Determination
Date (as defined below), the Remarketing Date and each date, if any, thereafter,
of delivery of MOPPRS by the Remarketing Dealer (each such date being
hereinafter referred to as a "Representation Date"), that (i) it has or shall
have made all the filings with the Commission that it is required to make under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the rules
and regulations thereunder (the "1934 Act Regulations") within the 12-month
period prior to the Representation Date (the filings made within the 12 month
period of a Representation Date being referred to as the "1934 Act Documents",
with respect to such Representation Date), (ii) each 1934 Act Document complies
in all material respects with the requirements of the 1934 Act and 1934 Act
Regulations, and each 1934 Act Document (as modified or superseded by
subsequently filed documents at or prior to such date) as of each Representation
Date will not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, (iii) the applicable Remarketing Materials (as defined
herein) will not, as of the Remarketing Date and each date, if any, thereafter,
of delivery of MOPPRS by the Remarketing Dealer, include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (iv) no consent,
approval, authorization, order or decree of any court or governmental agency or
body, including as to an effective registration statement under the 1933 Act
with respect to the MOPPRS, is required for the consummation by the Operating
Partnership or the Company of the transactions contemplated by this Agreement or
in connection with the remarketing of MOPPRS pursuant hereto, except such as
have been or shall have been obtained or rendered, as the case may be.
(b) Each of the Operating Partnership and the Company further represents
and warrants to the Remarketing Dealer as of each Representation Date as
follows:
(i) This Agreement has been duly authorized, executed and delivered
by the Company and the Operating Partnership.
(ii) The Indenture has been duly authorized, executed and delivered
by the Operating Partnership and duly qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"), and, assuming it has been duly
executed and delivered by the Trustee, constitutes a valid and binding
agreement of the Operating Partnership, enforceable against the Operating
Partnership in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers, reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement
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thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(iii) The MOPPRS have been duly authorized and executed by the
Operating Partnership and authenticated, issued and delivered in the
manner provided for in the Indenture and delivered against payment of the
purchase price therefor as provided in the Underwriting Agreement, and
constitute valid and binding obligations of the Operating Partnership,
enforceable against the Operating Partnership in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and are in
the form contemplated by, and entitled to the benefits of, the Indenture.
(iv) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the
Company or the Operating Partnership of its obligations hereunder, in
connection with the remarketing of the MOPPRS hereunder or the
consummation of the transactions contemplated by this Agreement or for the
due execution, delivery or performance of the Indenture by the Operating
Partnership, except such as have been already obtained or shall have been
obtained prior to such remarketing.
(v) The MOPPRS are rated "BBB" by Standard & Poor's Rating Services
and "Baa3" by Xxxxx'x Investors Service or such other rating as to which
the Operating Partnership shall have most recently notified the
Remarketing Dealer pursuant to Section 3(a) hereof.
(vi) The accountants who certified the financial statements and
supporting schedules included or incorporated by reference in the
Remarketing Materials are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(vii) The financial statements included or incorporated by reference
in the Remarketing Materials, together with the related schedules and
notes, present fairly the financial position of the Operating Partnership,
the Company and their consolidated subsidiaries and each other applicable
entity at the dates indicated and the statement of operations,
stockholders' equity and cash flows of each of the Operating Partnership,
the Company and their consolidated subsidiaries for the periods specified;
said financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included or incorporated by reference in the Remarketing Materials present
fairly in accordance with GAAP the information required to be stated
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therein. The pro forma financial statements and the related notes thereto,
if any, included or incorporated by reference in the Remarketing Materials
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro
forma financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein.
(viii) Since the Notification Date, (a) there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise or the Operating Partnership and
its subsidiaries considered as one enterprise, or any of the real property
or improvements thereon owned by either the Company or any of its
subsidiaries or the Operating Partnership or any of its subsidiaries (each
individually, a "Property" and collectively, the "Properties"), whether or
not arising in the ordinary course of business (a "Material Adverse
Effect"), (b) no material casualty loss or material condemnation or other
material adverse event with respect to any of the Properties has occurred,
(c) there have been no transactions entered into or acquisitions by the
Company or any of its subsidiaries or the Operating Partnership or any of
its subsidiaries, other than those in the ordinary course of business or
disclosed in the Remarketing Materials, which are material with respect to
the Company and its subsidiaries considered as one enterprise or the
Operating Partnership and its subsidiaries considered as one enterprise,
and (d) except for regular quarterly dividends on the Company's common
stock, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock or by the
Operating Partnership or any of its subsidiaries with respect to its
partnership interests or any class of its capital stock. As used in this
Agreement, the term subsidiary as it relates to the Operating Partnership
includes any corporation, limited liability company, limited or general
partnership, joint venture or other entity through which the Operating
Partnership owns a controlling interest, either directly or indirectly, in
a Property.
(ix) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Maryland,
with corporate power and authority to own, lease and operate its
Properties and to conduct its business as described in the Remarketing
Materials and to enter into and perform its obligations under this
Agreement and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure
to so qualify or to be in good standing would not have a Material Adverse
Effect.
(x) The Amended and Restated Agreement of Limited Partnership of the
Operating Partnership (the "Partnership Agreement") has been duly and
validly authorized, executed and delivered by the Company and is a valid
and binding
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agreement, enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally
and by general principles of equity. The Partnership Agreement has been
duly executed and delivered by the other parties thereto and, to the
Company's knowledge, is a valid and binding agreement, enforceable against
such parties in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting creditors' rights generally and by general principles of
equity. The Operating Partnership and each of its "significant
subsidiaries" (as such term is defined in Rule 1-02 of Regulation S-X
(each, a "Significant Subsidiary")) has been duly formed and is validly
existing as a limited partnership, limited liability company or
corporation, as the case may be, in good standing under the laws of its
state of organization with partnership, limited liability company or
corporate power and authority, as the case may be, to own, lease and
operate its properties, to conduct the business in which it is engaged or
proposes to engage as described in the Prospectus and to enter into and
perform its obligations under this Agreement. The Operating Partnership
and each of its Significant Subsidiaries is duly qualified or registered
as a foreign partnership, limited liability company or corporation, as the
case may be, and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where
the failure to so qualify or register would not have a Material Adverse
Effect. Except as otherwise stated in the Remarketing Materials, all of
the issued and outstanding capital stock or other ownership interests in
each Significant Subsidiary have been duly authorized and validly issued,
are fully paid and non-assessable and are owned by the Company or the
Operating Partnership, directly or indirectly, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity,
except for security interests granted in respect of indebtedness of the
Company or the Operating Partnership or any of its subsidiaries as
described in the Remarketing Materials and except for security interests
which would not have a Material Adverse Effect.
(xi) Neither the Operating Partnership nor the Company nor any of
their subsidiaries is in violation of its charter, by-laws, certificate of
limited partnership or partnership agreement, as the case may be, or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Operating Partnership, the Company or any of their
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Operating Partnership, the
Company or any of their subsidiaries is subject (collectively, "Agreement
and Instruments") except for such defaults that would not result in a
Material Adverse Effect; and the execution, delivery and performance of
this Agreement, the Indenture and the MOPPRS and the consummation of the
transactions contemplated herein and in the Remarketing Materials and
compliance by each of the Operating Partnership and the Company with its
obligations hereunder and under the Indenture and the MOPPRS have been
duly
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authorized by all necessary corporate and partnership action and do not
and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Operating Partnership, the Company or any subsidiary pursuant to,
the Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter, by-laws, certificate of limited partnership
or partnership agreement of the Operating Partnership of the Company or
any subsidiary, as the case may be, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Operating Partnership, the Company or any subsidiary or any of their
assets, properties or operations, except for such violations that would
not result in a Material Adverse Effect. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Operating
Partnership, the Company or any subsidiary.
(xii) There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Operating Partnership or
the Company, threatened, against or affecting the Operating Partnership or
the Company or any subsidiary, which is required to be disclosed in the
1934 Act Documents (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by each of the Operating
Partnership or the Company of its obligations hereunder; the aggregate of
all pending legal or governmental proceedings to which the Operating
Partnership, the Company or any subsidiary is a party or of which any of
their respective property or assets is the subject which are not described
in the 1934 Act Documents, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in
a Material Adverse Effect.
(xiii) Neither the Company nor the Operating Partnership is an
"investment company" or an entity "controlled" by an "investment company"
as such terms are defined in the Investment Company Act of 1940, as
amended.
(xiv) The Company is, and has been since the taxable year ended
December 31, 1996, organized in conformity with the requirements for
qualification as a real estate investment trust ("REIT") under the
Internal Revenue Code of 1986, as amended (the "Code"), and the Company's
method of operation will enable it to meet the requirements for taxation
as a REIT under the Code.
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(xv) Each of the Company, the Operating Partnership and their
respective subsidiaries, as the case may be, has good and marketable title
to all items of real property owned by them, in each case free and clear
of all liens, encumbrances, claims, security interests and defects, other
than those referred to in the 1934 Act Documents or which are not material
in amount; (b) all liens, charges, encumbrances, claims, or restrictions
on or affecting the properties and assets owned by the Company, the
Operating Partnership or their respective subsidiaries which are required
to be disclosed in the 1934 Act Documents are disclosed therein; (c)
except as disclosed in the 1934 Act Documents, none of the Company, the
Operating Partnership or any of its subsidiaries, or, to the best of the
knowledge of the Company and the Operating Partnership, any lessee under a
lease relating to any of the real property or improvements thereon owned
by either the Company, the Operating Partnership or any of its
subsidiaries (each individually, a "Property" and collectively, the
"Properties"), is in default under any of the leases relating to the
Properties and neither the Company nor the Operating Partnership knows of
any event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases, except such
defaults that would not have a Material Adverse Effect; (d) no tenant
under any of the leases pursuant to which the Company, the Operating
Partnership or any of its subsidiaries leases any of its real property or
improvements has an option to purchase the premises demised under such
lease; (e) each of the Properties is in compliance with all applicable
codes and zoning laws and regulations, except for such failures to comply
which would not individually or in the aggregate have a Material Adverse
Effect; and (f) neither the Company nor the Operating Partnership has
knowledge of any pending or threatened condemnation, zoning change, or
other proceeding or action that will in any manner affect the size of, use
of, improvements on, construction on, or access to the Properties, except
such proceedings or actions that would not have a Material Adverse Effect.
(xvi) The Operating Partnership or its subsidiaries have obtained or
have the benefit of title insurance on all the Properties described in the
1934 Act Documents as owned by the Operating Partnership or its
subsidiaries in an amount as is customary for companies engaged in
business similar to the Operating Partnership, except where the failure to
do so would not result in a Material Adverse Effect.
(xvii) Except as disclosed in the 1934 Act Documents, each of the
Company and the Operating Partnership has no knowledge of (a) the unlawful
presence of any substance, material or waste which is regulated by any
federal, state or local governmental or quasi-governmental authority,
including, without limitation, (i) any substance, material or waste
defined, used or listed as a "hazardous waste", "extremely hazardous
waste", "restricted hazardous waste", "hazardous substance", "hazardous
material", "toxic substance" or other similar terms as defined or used in
any Environmental Law (as defined below), (ii) any petroleum products,
asbestos, polychlorinated biphenyls, lead-based paint, flammable
explosives or radioactive materials and (iii) any additional substances or
materials which are hazardous or toxic
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substances under any Environmental Law relating to the Properties
(collectively, "Hazardous Materials") on any of the Properties or of (b)
any spill, release, discharge or disposal of Hazardous Materials that have
occurred or are presently occurring at, from or onto any of the Properties
or any properties near or adjacent to the Properties, which presence or
occurrence would result in a Material Adverse Effect. Except as disclosed
in the 1934 Act Documents, in connection with the construction on or
operation and use of the Properties, the Company and the Operating
Partnership represent that, as of the date of this Agreement, each of the
Company and the Operating Partnership has no knowledge of any material
failure to comply with all applicable local, state and federal
environmental laws, regulations, ordinances and administrative and
judicial orders relating to the use, generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous Materials
(collectively, "Environmental Laws") that would have a Material Adverse
Effect.
(c) Any certificate signed by any director or officer of the Operating
Partnership (or any officer of the Company) and delivered to the Remarketing
Dealer or to counsel for the Remarketing Dealer in connection with the
remarketing of the MOPPRS shall be deemed a representation and warranty by the
Operating Partnership and the Company to the Remarketing Dealer as to the
matters covered thereby.
(d) The Remarketing Dealer represents and warrants to the Operating
Partnership and the Company that this Agreement has been duly authorized,
executed and delivered by the Remarketing Dealer.
Section 3. Covenants of the Operating Partnership and the Company. Each of
the Company and the Operating Partnership covenants with the Remarketing Dealer
as follows:
(a) The Operating Partnership will provide prompt notice by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), to the Remarketing Dealer of (i) any notification or announcement
by a "nationally recognized statistical rating agency" (as defined by the
Commission for purposes of Rule 436(g)(2) under the 0000 Xxx) with regard to the
ratings of any securities of the Operating Partnership or the Company,
including, without limitation, notification or announcement of a downgrade in or
withdrawal of the rating of any security of the Operating Partnership or the
Company or notification or announcement of the placement of any rating of any
securities of the Operating Partnership or the Company under surveillance or
review, including placement on CreditWatch or on Watch List with negative
implications, or (ii) the occurrence at any time of any event set forth in
Section 8(b) of this Agreement.
(b) The Operating Partnership will furnish to the Remarketing Dealer:
(i) if required as provided in paragraph (e) below for purposes of
the remarketing, a then currently effective registration statement under
the 1933 Act and a then current prospectus relating to the MOPPRS to be
used by the Remarketing Dealer
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for remarketing and resale of the MOPPRS (such registration statement and
any amendments thereto, including any such prospectus relating to the
MOPPRS constituting a part thereof, and all documents incorporated therein
by reference, as from time to time amended or supplemented pursuant to the
1934 Act, the 1933 Act, or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively, except that
if any revised prospectus shall be provided to the Remarketing Dealer by
the Operating Partnership for use in connection with the remarketing of
the MOPPRS which differs from the Prospectus on file at the Commission at
the time the Registration Statement becomes effective (whether or not such
revised prospectus is required to be filed by the Operating Partnership
pursuant to Rule 424(b) of the 1933 Act Regulations, the term "Prospectus"
shall refer to such revised prospectus from and after the time it is first
provided to the Remarketing Dealer for such use);
(ii) each 1934 Act Document filed within 12 months of the
Remarketing Date or the Notification Date;
(iii) in connection with the remarketing of MOPPRS, such other
information as the Remarketing Dealer may reasonably request from time to
time; and
(iv) each document filed by the Company or the Operating Partnership
with the Commission pursuant to the 1933 Act or the 1934 Act or otherwise
after the date hereof.
The Operating Partnership agrees to provide the Remarketing Dealer with as
many copies of the foregoing written materials and other Operating Partnership
approved information as the Remarketing Dealer may reasonably request for use in
connection with the remarketing of MOPPRS, and consents to the use thereof for
such purpose, and agrees to provide the Remarketing Dealer with the opportunity
to perform customary due diligence with respect thereto a reasonable period of
time prior to the Remarketing Date.
(c) If, at any time during which the Remarketing Dealer would be obligated
to take any action under this Agreement, any event or condition known to the
Operating Partnership relating to or affecting the Company, the Operating
Partnership, any subsidiary thereof or the MOPPRS shall occur which could
reasonably be expected to cause any of the reports, documents, materials or
information referred to in paragraph (b) (i), (ii) or (iii) above or any
document incorporated therein by reference (collectively, the "Remarketing
Materials") to contain an untrue statement of a material fact or omit to state a
material fact, the Operating Partnership shall promptly notify the Remarketing
Dealer in writing of the circumstances and details of such event or condition.
(d) So long as the MOPPRS are outstanding, the Company and the Operating
Partnership will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations, provided that this covenant shall not apply to the
extent that the Company's or Operating Partnership's failure to file any
document does not, in the reasonable judgment of the Remarketing Dealer,
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have a material adverse effect on the proposed remarketing of the MOPPRS as
contemplated by this Agreement.
(e) The Company and the Operating Partnership will comply with the 1933
Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and
the 1939 Act and the rules and regulations of the Commission thereunder so as to
permit the completion of the remarketing of the MOPPRS as contemplated in this
Agreement and in the prospectus relating to the initial issuance of the MOPPRS.
In furtherance of the foregoing, if it shall be necessary, in the opinion of
counsel for the Remarketing Dealer or for the Operating Partnership to have a
currently effective Registration Statement and a current Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations and the
Commission's interpretations of the 1933 Act and the 1933 Act Regulations, or if
at any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the MOPPRS, any event shall occur or condition shall
exist as a result of which it is necessary, in the opinion of counsel for the
Remarketing Dealer or for the Operating Partnership, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, the Operating Partnership, at its expense, will promptly (i) prepare
and file with the Commission such Registration Statement and Prospectus or such
amendment or supplement as may be necessary to correct such statement or
omission as referred to above or to make the Registration Statement or the
Prospectus comply with such requirements as referred to above, (ii) furnish to
the Remarketing Dealer such number of copies of such Registration Statement and
Prospectus or such amendment, supplement or other document as the Remarketing
Dealer may reasonably request and (iii) furnish to the Remarketing Dealer an
officers' certificate, an opinion, including a statement as to the absence of
material misstatements in or omissions from the Registration Statement and
Prospectus, as amended or supplemented, of counsel for the Operating Partnership
satisfactory to the Remarketing Dealer and a "comfort letter" from the Operating
Partnership's independent accountants, in each case in form and substance
satisfactory to the Remarketing Dealer, of the same tenor as the officers'
certificate, opinion and comfort letter, respectively, delivered pursuant to the
Underwriting Agreement, but modified to relate to the Registration Statement and
Prospectus as amended or supplemented to the date thereof.
(f) The Company and Operating Partnership agree that neither they nor any
of their subsidiaries or affiliates shall defease, purchase or otherwise
acquire, or enter into any agreement to defease, purchase or otherwise acquire,
any of the MOPPRS prior to the remarketing thereof by the Remarketing Dealer,
other than pursuant to Section 4(g) or 4(h) of this Agreement.
(g) Notwithstanding any provision to the contrary set forth in the
Indenture, the Operating Partnership shall (i) use its best efforts to maintain
the MOPPRS in book-entry form with the Depositary Trust Company ("DTC") or any
successor thereto and to appoint a successor depositary to the extent necessary
to maintain the MOPPRS in book-entry form, and (ii) waive
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any discretionary right it otherwise has under the Indenture to cause the MOPPRS
to be issued in certificated form.
(h) To the extent that a Registration Statement and current Prospectus are
required as contemplated in paragraph (e) above, the Company and the Operating
Partnership will comply with covenants of the same tenor as those set forth in
the Underwriting Agreement, but modified to relate to the Registration Statement
and the Prospectus.
Section 4. Appointment and Obligations of the Remarketing Dealer. (a)
Unless this Agreement is otherwise terminated in accordance with Section 11
hereof, in accordance with the terms, but subject to the conditions, of this
Agreement, the Operating Partnership hereby appoints Xxxxxxx Xxxxx, and Xxxxxxx
Xxxxx hereby accepts such appointment, as the exclusive Remarketing Dealer with
respect to $100,000,000 aggregate principal amount of MOPPRS and agrees, subject
to the conditions set forth herein, to remarket the MOPPRS, subject further to
repurchase of the MOPPRS in accordance with clause (g) of this section or
redemption of the MOPPRS in accordance with clause (h) of this section.
(b) It is expressly understood and agreed by the parties hereto that the
obligations of the Remarketing Dealer hereunder with respect to the MOPPRS to be
remarketed on the Remarketing Date are conditioned on the Remarketing Dealer's
election on the Notification Date to purchase the MOPPRS for remarketing on the
Remarketing Date. It is further expressly understood and agreed by and between
the parties hereto that, if the Remarketing Dealer has elected to remarket the
MOPPRS pursuant to clause (c) below, the Remarketing Dealer shall not be
obligated to set the Interest Rate to Maturity on any MOPPRS, to remarket any
MOPPRS or to perform any of the other duties set forth herein at any time after
the Notification Date that (i) any of the conditions set forth in clause (a) of
Section 8 hereof shall not have been fully and completely met to the reasonable
satisfaction of the Remarketing Dealer, or (ii) any of the events set forth in
clause (b) of Section 8 hereof shall have occurred.
(c) On a Business Day not more than fifteen nor less than five Business
Days prior to the Remarketing Date, the Remarketing Dealer shall notify the
Operating Partnership and the Trustee as to whether it elects to purchase the
MOPPRS on the Remarketing Date (the "Notification Date"). If, and only if, the
Remarketing Dealer so elects, the MOPPRS shall be subject to mandatory tender to
the Remarketing Dealer, and the Remarketing Dealer shall be obligated to
purchase the MOPPRS, for remarketing on the Remarketing Date, subject in each
case to the conditions described herein.
(d) Subject to the Remarketing Dealer's election to remarket the MOPPRS as
provided in clause (c) above, the Interest Rate to Maturity shall be determined
by the Remarketing Dealer by 3:30 p.m., New York City time, on the third
Business Day preceding the Remarketing Date (the "Determination Date") to the
nearest one hundred-thousandth (0.00001) of one percent per annum, and will be
equal to the sum of 5.753% (the "Base Rate") plus the Applicable Spread (as
defined below), which will be based on the Dollar Price (as defined below) of
the MOPPRS.
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The "Applicable Spread" will be the lowest bid indication, expressed as a
spread (in the form of a percentage or in basis points) above the Base Rate,
obtained by the Remarketing Dealer on the Determination Date from the bids
quoted by five Reference Corporate Dealers (as defined below) for the full
aggregate principal amount of the MOPPRS at the Dollar Price, but assuming (i)
an issue date equal to the Remarketing Date, with settlement on such date
without accrued interest, (ii) a maturity date equal to the Stated Maturity Date
of the MOPPRS, and (iii) a stated annual interest rate equal to the Base Rate
plus the spread bid by the applicable Reference Corporate Dealer. If fewer than
five Reference Corporate Dealers bid as described above, then the Applicable
Spread shall be the lowest of such bid indications obtained as described above.
The Interest Rate to Maturity announced by the Remarketing Dealer, absent
manifest error, shall be binding and conclusive upon the Beneficial Owners and
Holders of the MOPPRS, the Operating Partnership, the Company and the Trustee.
"Dollar Price" means, with respect to the MOPPRS, the present value, as of
the Remarketing Date, of the Remaining Scheduled Payments (as defined below)
discounted to the Remarketing Date, on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months), at the Treasury Rate (as defined
below).
"Reference Corporate Dealers" mean leading dealers of publicly traded debt
securities of the Operating Partnership in The City of New York (which may
include the Remarketing Dealer or one of its affiliates) selected by the
Remarketing Dealer.
"Treasury Rate" means, with respect to the Remarketing Date, the rate per
annum equal to the semi-annual equivalent yield to maturity or interpolated (on
a day count basis) yield to maturity of the Comparable Treasury Issues (as
defined below), assuming a price for the Comparable Treasury Issues (expressed
as a percentage of its principal amount), equal to the Comparable Treasury Price
(as defined below) for the Remarketing Date.
"Comparable Treasury Issues" means the United States Treasury security or
securities selected by the Remarketing Dealer as having an actual or
interpolated maturity or maturities comparable to the remaining term of the
MOPPRS being remarketed.
"Comparable Treasury Price" means, with respect to the Remarketing Date,
(a) the offer prices for the Comparable Treasury Issues (expressed in each case
as a percentage of its principal amount) on the Determination Date, as set forth
on "Telerate Page 500" (or such other page as may replace Telerate Page 500), or
(b) if such page (or any successor page) is not displayed or does not contain
such offer prices on the Determination Date, (i) the average of the Reference
Treasury Dealer Quotations for the Remarketing Date, after excluding the highest
and lowest such Reference Treasury Dealer Quotations, or (ii) if the Remarketing
Dealer obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such Reference Treasury Dealer Quotations. "Telerate Page 500"
means the display designated as "Telerate Page 500" on Dow Xxxxx Markets Limited
(or such other page as may replace Telerate Page 500 on such service) or such
other service displaying the offer prices specified in (a) above as may replace
Dow Xxxxx Markets Limited.
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"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and the Remarketing Date, the offer prices for the
Comparable Treasury Issues (expressed in each case as a percentage of its
principal amount) quoted in writing to the Remarketing Dealer by such Reference
Treasury Dealer by 3:30 p.m., on the Determination Date.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, Xxxxxx Brothers Inc., Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx & Co.
Incorporated and Salomon Brothers Inc and their respective successors; provided,
however, that if any of the foregoing or their affiliates shall cease to be a
primary U.S. Government securities dealer in The City of New York (a "Primary
Treasury Dealer"), the Remarketing Dealer shall substitute therefor another
Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to the MOPPRS, the
remaining scheduled payments of the principal thereof and interest thereon,
calculated at the Base Rate only, that would be due after the Remarketing Date
to and including the Stated Maturity Date; provided, however, that if the
Remarketing Date is not an Interest Payment Date with respect to the MOPPRS, the
amount of the next succeeding scheduled interest payment thereon, calculated at
the Base Rate only, will be reduced by the amount of interest accrued thereon,
calculated at the Base Rate only, to the Remarketing Date.
(e) Subject to the Remarketing Dealer's election to remarket the MOPPRS as
provided in clause (c) above, the Remarketing Dealer shall notify the Operating
Partnership, the Trustee and DTC by telephone, confirmed in writing (which may
include facsimile or other electronic transmission), by 4:00 p.m., New York City
time, on the Determination Date of the Interest Rate to Maturity applicable to
the MOPPRS effective from and including the Remarketing Date.
(f) In the event that the MOPPRS are remarketed as provided herein, the
Remarketing Dealer shall make, or cause the Trustee to make, payment to the DTC
Participant of each tendering Beneficial Owner of MOPPRS subject to remarketing,
by book entry through DTC by the close of business on the Remarketing Date
against delivery through DTC of such Beneficial Owner's tendered MOPPRS, of 100%
of the principal amount of the tendered MOPPRS that have been purchased for
remarketing by the Remarketing Dealer. The Operating Partnership shall make, or
cause the Trustee to make, payment of interest to each Beneficial Owner of
MOPPRS due on the Remarketing Date by book entry through DTC by the close of
business on the Remarketing Date.
(g) Subject to Section 11(c) of this Agreement, in the event that (i) the
Remarketing Dealer for any reason does not notify the Operating Partnership of
the Interest Rate to Maturity by 4:00 p.m., New York City time, on the
Determination Date, or (ii) prior to the Remarketing Date, the Remarketing
Dealer has resigned and no successor has been appointed on or before the
Determination Date, or (iii) at any time after the Remarketing Dealer elects on
the Notification Date to remarket the MOPPRS any event as set forth in Section 8
or Section 11 of this Agreement shall have occurred, or (iv) the Remarketing
Dealer for any reason does not elect
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to purchase the MOPPRS for remarketing on the Remarketing Date, or (v) the
Remarketing Dealer for any reason does not purchase all tendered MOPPRS on the
Remarketing Date, the Operating Partnership shall repurchase the MOPPRS as a
whole on the Remarketing Date at a price equal to 100% of the principal amount
of the MOPPRS plus all accrued and unpaid interest, if any, on the MOPPRS to the
Remarketing Date. In any such case, payment will be made by the Operating
Partnership through the Trustee to the DTC Participant of each tendering
Beneficial Owner of MOPPRS, by book-entry through DTC by the close of business
on the Remarketing Date against delivery through DTC of such Beneficial Owner's
tendered MOPPRS. Payments or performance made by the Operating Partnership
hereunder shall not relieve the Remarketing Dealer of its obligations under this
Agreement arising out of any breach of this Agreement by the Remarketing Dealer.
(h) If the Remarketing Dealer elects to remarket the MOPPRS as provided in
clause (c) above, then not later than the Business Day immediately preceding the
Determination Date, the Operating Partnership shall notify the Remarketing
Dealer and the Trustee if the Operating Partnership irrevocably elects to
exercise its right to redeem the MOPPRS, in whole but not in part, from the
Remarketing Dealer on the Remarketing Date at the Optional Redemption Price. The
"Optional Redemption Price" shall be the greater of (i) 100% of the principal
amount of the MOPPRS and (ii) the sum of the present values of the Remaining
Scheduled Payments thereon, as determined in good faith by the Remarketing
Dealer, discounted to the Remarketing Date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate, plus in
either case accrued and unpaid interest from the Remarketing Date on the
principal amount being redeemed to the date of redemption. If the Operating
Partnership elects to redeem the MOPPRS, it shall pay the redemption price
therefor in same-day funds by wire transfer to an account designated by the
Remarketing Dealer on the Remarketing Date.
(i) The Remarketing Dealer may, in accordance with the terms of the
Indenture, modify the tender and settlement procedures set forth in the
Indenture in order to facilitate the tender and settlement process.
(j) The tender and settlement procedures described above, including
provisions for payment by purchasers of MOPPRS in the remarketing or for payment
to selling Beneficial Owners of tendered MOPPRS, may be modified to the extent
required by DTC or, if agreed to by the Remarketing Dealer in accordance with
Section 8(b)(viii) of this Agreement, to the extent required to facilitate the
tender and remarketing of MOPPRS in certificated form, if the book-entry system
is no longer available for the MOPPRS at the time of the remarketing.
Section 5. Fees and Expenses. Subject to Section 11 of this Agreement, for
its services in performing its duties set forth herein, the Remarketing Dealer
will not receive any fees or reimbursement of expenses from the Operating
Partnership.
Section 6. Resignation of the Remarketing Dealer. The Remarketing Dealer
may resign and be discharged from its duties and obligations hereunder at any
time, such resignation to be effective 10 days after delivery of a written
notice to the Operating Partnership and the Trustee
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of such resignation, provided that no such resignation shall occur under this
sentence after the Notification Date. The Remarketing Dealer also may resign and
be discharged from its duties and obligations hereunder at any time, such
resignation to be effective immediately, upon termination of this Agreement in
accordance with Section 11(b) hereof. It shall be the sole obligation of the
Operating Partnership to appoint a successor Remarketing Dealer.
Section 7. Dealing in the MOPPRS; Purchase of MOPPRS by the Operating
Partnership. (a) Xxxxxxx Xxxxx, when acting as the Remarketing Dealer or in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold and deal in any of the MOPPRS. Xxxxxxx Xxxxx, as Holder or Beneficial
Owner of the MOPPRS, may exercise any vote or join as a Holder or Beneficial
Owner, as the case may be, in any action which any Holder or Beneficial Owner of
MOPPRS may be entitled to exercise or take pursuant to the Indenture with like
effect as if it did not act in any capacity hereunder. The Remarketing Dealer,
in its capacity either as principal or agent, may also engage in or have an
interest in any financial or other transaction with the Operating Partnership or
the Company as freely as if it did not act in any capacity hereunder.
(b) The Operating Partnership or the Company may purchase MOPPRS in the
remarketing, provided that the Interest Rate to Maturity established with
respect to MOPPRS in the remarketing is not different from the Interest Rate to
Maturity that would have been established if the Operating Partnership or the
Company had not purchased such MOPPRS.
Section 8. Conditions to Remarketing Dealer's Obligations. The obligations
of the Remarketing Dealer under this Agreement have been undertaken in reliance
on, and shall be subject to, (a) the due performance in all material respects by
the Company and the Operating Partnership of their obligations and agreements as
set forth in this Agreement and the accuracy in all material respects as of the
dates specified herein of the representations and warranties in this Agreement
and any certificate delivered pursuant hereto, and (b) the further condition
that none of the following events shall have occurred after the Remarketing
Dealer elects on the Notification Date to remarket the MOPPRS:
(i) the rating of any securities of the Operating Partnership or the
Company shall have been down-graded or put under surveillance or review,
including being put on CreditWatch or Watch List with negative
implications, or withdrawn by a nationally recognized statistical rating
agency;
(ii) without the prior written consent of the Remarketing Dealer,
the Indenture (including the MOPPRS) shall have been amended in any
manner, or otherwise contain any provision not contained therein as of the
date hereof, that in either case in the reasonable judgment of the
Remarketing Dealer materially changes the nature of the MOPPRS or the
remarketing procedures (it being understood that, notwithstanding the
provisions of this clause (ii), the Operating Partnership shall not be
prohibited from amending the Indenture);
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(iii) trading in any securities of the Operating Partnership or the
Company shall have been suspended or materially limited by the Commission
or the New York Stock Exchange, or if trading generally on the American
Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market shall have been suspended or materially limited, or minimum or
maximum prices for trading shall have been fixed, or maximum ranges for
prices shall have been required, by any of said exchanges or by such
system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or if a
banking moratorium shall have been declared by either Federal or New York
authorities;
(iv) there shall have occurred any material adverse change in the
financial markets in the United States or the international financial
markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective
change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
reasonable judgment of the Remarketing Dealer, impracticable to remarket
the MOPPRS or to enforce contracts for the sale of the MOPPRS;
(v) an Event of Default (as defined in the Indenture), or any event
which, with the giving of notice or passage of time, or both, would
constitute an Event of Default, with respect to the MOPPRS shall have
occurred and be continuing;
(vi) a material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise or the
Operating Partnership and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, shall have
occurred;
(vii) if the Prospectus is required under the 1933 Act to be
delivered in connection with the remarketing of the MOPPRS, the Operating
Partnership shall fail to furnish to the Remarketing Dealer on the
Remarketing Date the officers' certificate, opinion and comfort letter
referred to in Section 3(e) of this Agreement and such other documents and
opinions as counsel for the Remarketing Dealer may reasonably require for
the purpose of enabling such counsel to pass upon the sale of MOPPRS in
the remarketing as herein contemplated and related proceedings, or in
order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the
conditions, herein contained; or
(viii) the MOPPRS are not maintained in book-entry form with DTC or
any successor thereto; provided, that the Remarketing Dealer, subject to
receipt of an opinion of counsel for the Operating Partnership reasonably
satisfactory to the Remarketing Dealer, shall waive the foregoing
condition if in the Remarketing Dealer's reasonable judgment (x) the
Indenture and the MOPPRS can be amended, and they are amended, so as to
permit the remarketing of the MOPPRS in certificated form and (y) it is
practical
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to remarket the MOPPRS with the same effect and on the same terms as
otherwise contemplated herein;
and the Remarketing Dealer shall have received on the Remarketing Date a
certificate of the chief executive officer and of the chief financial officer of
the Operating Partnership and the Company, dated as of the Remarketing Date, to
the effect that (i) the representations and warranties in this Agreement are
true and correct in all material respects with the same force and effect as
though expressly made at and as of the Remarketing Date, (ii) each of the
Company and the Operating Partnership has complied in all material respects with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Remarketing Date and (iii) none of the events
specified in the preceding clause (b) has occurred.
(c) In furtherance of the foregoing, the effectiveness of the Remarketing
Dealer's election on the Notification Date to remarket the MOPPRS shall be
subject to the condition that the Remarketing Dealer shall have received a
certificate of the chief executive officer and of the chief financial officer of
the Operating Partnership and the Company, dated as of the Notification Date, to
the effect that (i) the Operating Partnership has, prior to the Remarketing
Dealer's election on the Notification Date to remarket the MOPPRS, provided the
Remarketing Dealer with notice of all events as required under Section 3(a) of
this Agreement, (ii) the representations and warranties in this Agreement are
true and correct in all material respects at and as of the Notification Date and
(iii) each of the Company and the Operating Partnership has complied in all
material respects with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Notification Date. Such
certificate shall be delivered by the Operating Partnership to the Remarketing
Dealer as soon as practicable following notification by the Remarketing Dealer
to the Operating Partnership on the Notification Date of its election to
remarket the MOPPRS and in any event prior to the Determination Date.
In the event of the failure of any of the foregoing conditions, the
Remarketing Dealer may terminate its obligations under this Agreement or
redetermine the Interest Rate to Maturity as provided in Section 11.
Section 9. Indemnification. (a) The Company and the Operating Partnership,
jointly and severally, agree to indemnify and hold harmless the Remarketing
Dealer and its officers, directors and employees and each person, if any, who
controls the Remarketing Dealer within the meaning of Section 20 of the 1934 Act
as follows:
(i) against any loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of, (A) the failure to have an
effective registration statement under the 1933 Act relating to the
MOPPRS, if required, or the failure to satisfy the prospectus delivery
requirements of the 1933 Act because the Operating Partnership failed to
notify the Remarketing Dealer of such delivery requirement or failed to
provide the Remarketing Dealer with an updated Prospectus for delivery, or
(B) any untrue statement or alleged untrue statement of a material fact
contained in any of the Remarketing Materials (including any incorporated
documents), or (C) the omission or alleged
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omission therefrom of a material fact necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading, or (D) any violation by the Operating Partnership or the
Company of, or any failure by the Operating Partnership or the Company to
perform any of its obligations under, this Agreement, or (E) the acts or
omissions of the Remarketing Dealer in connection with its duties and
obligations hereunder except that are finally judicially determined to be
due to its gross negligence or willful misconduct;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever arising out of, or based upon, any of items (A) through (E) in
clause (i) above; provided that such settlement is effected with the
written consent of the Operating Partnership, which consent shall not be
unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Remarketing Dealer),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever arising out of,
or based upon, any of items (A) through (E) in clause (i) above to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that the foregoing indemnity shall not apply to any losses,
liabilities, claims, damages and expenses to the extent arising out of any
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Operating Partnership by the Remarketing
Dealer expressly for use in the Remarketing Materials.
(b) The Remarketing Dealer agrees to indemnify and hold harmless the
Company, the Operating Partnership, their directors and each of the officers who
signed the Registration Statement, from and against any loss, liability, claim,
damage and expense, as incurred, but only with respect to untrue statements or
omissions made in the Remarketing Materials in reliance upon and in conformity
with information furnished to the Operating Partnership in writing by the
Remarketing Dealer expressly for use in such Remarketing Materials. The
indemnity agreement in this paragraph shall extend upon the same terms and
conditions to each person, if any, who controls the Company or the Operating
Partnership within the meaning of Section 20 of the 1934 Act.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have
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otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to clause (a) above, counsel to the indemnified parties
shall be selected by Xxxxxxx Xxxxx, and, in the case of parties indemnified
pursuant to clause (b) above, counsel to the indemnified parties shall be
selected by the Operating Partnership. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 9 or Section 10 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission or fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) The indemnity agreements contained in this Section 9 shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of the Remarketing Dealer, and shall survive the termination or
cancellation of this Agreement and the remarketing of any MOPPRS hereunder.
Section 10. Contribution. If the indemnification provided for in Section 9
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Operating
Partnership or the Company on the one hand and the Remarketing Dealer on the
other hand from the remarketing of the MOPPRS pursuant to this Agreement or (ii)
if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Operating
Partnership or the Company on the one hand and of the Remarketing Dealer on the
other hand in connection with the acts, failures to act, statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Operating Partnership or the Company
on the one hand and the Remarketing Dealer on the other hand in connection with
the remarketing of the MOPPRS pursuant to this Agreement shall be deemed to be
in the same respective proportions as (i) the aggregate principal amount of the
MOPPRS, and (iii) the aggregate positive difference, if any, between the price
paid by the Remarketing Dealer for the MOPPRS tendered on the
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Remarketing Date and the price at which the MOPPRS are sold by the Remarketing
Dealer in the remarketing.
The relative fault of the Operating Partnership or the Company on the one
hand and the Remarketing Dealer on the other hand shall be determined by
reference to, among other things, the responsibility hereunder of the applicable
party for any act or failure to act relating to the losses, liabilities, claims,
damages or expenses incurred or, in the case of any losses, liabilities, claims,
damages or expenses arising out of any untrue or alleged untrue statement of a
material fact contained in any of the Remarketing Materials or the omission or
alleged omission to state a material fact therefrom, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Operating
Partnership or by the Remarketing Dealer and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Operating Partnership, the Company and the Remarketing Dealer agree
that it would not be just and equitable if contribution pursuant to this Section
10 were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 10. The aggregate amount of losses, liabilities, claims, damages
and expenses incurred by an indemnified party and referred to above in this
Section 10 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such act or failure to act or untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 10, the Remarketing Dealer
shall not be required to contribute any amount in excess of the amount by which
the total price at which the MOPPRS remarketed by it and resold to the public
were sold to the public exceeds the amount of any damages which the Remarketing
Dealer has otherwise been required to pay by reason of any act or failure to act
for which it is responsible hereunder or any untrue or alleged untrue statement
or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 10, each person, if any, who controls the
Remarketing Dealer within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Remarketing
Dealer or the Company, and each director of the Operating Partnership or the
Company, each officer of the Operating Partnership or the Company who signed the
Registration Statement, and each person, if any, who controls the Operating
Partnership or the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Operating Partnership or the Company.
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Section 11. Termination of or Redetermination of
Interest Rate to Maturity. (a) This Agreement shall terminate as to the
Remarketing Dealer on the effective date of the resignation of the Remarketing
Dealer pursuant to Section 6 hereof or if the Remarketing Dealer does not elect
to remarket the MOPPRS pursuant to Section 4(c) hereof or upon the notification
of the Remarketing Dealer by the Operating Partnership of its election to redeem
the MOPPRS pursuant to Section 4(h) hereof.
(b) In addition, the Remarketing Dealer may terminate all of its
obligations under this Agreement immediately by notifying the Operating
Partnership and the Trustee of its election to do so, at any time on or before
the Remarketing Date, in the event that: (i) any of the conditions referred to
or set forth in Section 8 (a) hereof have not been met or satisfied in full,
(ii) any of the events set forth in Section 8(b) shall have occurred after the
Remarketing Dealer elects on the Notification Date to remarket the MOPPRS or
(iii) the Remarketing Dealer determines, in its discretion, after consultation
with the Operating Partnership, that it shall not have received all of the
information, whether or not specifically referenced herein, reasonably necessary
to fulfill its obligations under this Agreement.
(c) Notwithstanding any provision herein to the contrary, in lieu of
terminating this Agreement pursuant to Section 11(b) above, upon the occurrence
of any of the events set forth therein, the Remarketing Dealer, in its sole
discretion at any time between the Determination Date and 3:30 p.m., New York
City time, on the Business Day immediately preceding the Remarketing Date, may
elect to purchase the MOPPRS for remarketing and determine a new Interest Rate
to Maturity in the manner provided in Section 4(d) of this Agreement, except
that for purposes of determining the new Interest Rate to Maturity pursuant to
this paragraph the Determination Date referred to therein shall be the date of
such election and redetermination. The Remarketing Dealer shall notify the
Operating Partnership, the Trustee and DTC by telephone, confirmed in writing
(which may include facsimile or other electronic transmission), by 4:00 p.m.,
New York City time, on the date of such election, of the new Interest Rate to
Maturity applicable to the MOPPRS. Thereupon, such new Interest Rate to Maturity
shall supersede and replace any Interest Rate to Maturity previously determined
by the Remarketing Dealer and, absent manifest error, shall be binding and
conclusive upon the Beneficial Owners and Holders of the MOPPRS on or after the
Remarketing Date, the Operating Partnership and the Trustee; provided, however,
that the Remarketing Dealer, by redetermining the Interest Rate to Maturity upon
the occurrence of any event set forth in Section 11(b) as set forth above, shall
not thereby be deemed to have waived its right to determine a new Interest Rate
to Maturity or terminate this Agreement upon the occurrence of any other event
set forth in Section 11(b).
(d) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
that, in the case of termination pursuant to Section 11(b) of this Agreement,
the Operating Partnership or the Company shall reimburse the Remarketing Dealer
for all of its out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Remarketing Dealer in connection with the
remarketing, and except further as set forth in Section 11(e) below. Sections 1,
9, 10, 11(d) and 11(e) shall survive such termination and remain in full force
and effect.
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(e) In the case of either (i) termination of this Agreement pursuant to
Section 11(b) or (ii) the occurrence, prior to the Remarketing Dealer's election
on the Notification Date to remarket the MOPPRS, of any event set forth in
Section 8(b)(ii), (v) or (viii), upon the request of the Remarketing Dealer, the
Operating Partnership or the Company shall immediately following the Call Price
Determination Date (as defined below) pay the Remarketing Dealer, in same-day
funds by wire transfer to an account designated by the Remarketing Dealer, the
fair market value, calculated as set forth below, of the Remarketing Dealer's
right to purchase and remarket the MOPPRS pursuant to this Agreement (the "Call
Price").
In the case of termination of this Agreement pursuant to Section 11(b),
the Call Price shall be equal to the excess, if any, of (i) the present value of
the Remaining Scheduled Payments determined as provided in Section 4 over (ii)
the aggregate principal amount of the MOPPRS.
In the case of the occurrence, prior to the Remarketing Dealer's election
on the Notification Date to remarket the MOPPRS, of any event set forth in
Section 8(b)(ii) or (v) or (viii), the Call Price shall be determined in good
faith by the Remarketing Dealer on a commercially reasonable basis by reference
to, among other factors, the formulation set forth in the preceding paragraph.
The Remarketing Dealer shall determine the applicable Call Price on the
Business Day immediately following the date of termination or notification of
the occurrence, prior to the Remarketing Dealer's election on the Notification
Date to remarket the MOPPRS, of any event set forth in Section 8(b)(ii), (v) or
(viii), as the case may be, or as soon as practicable thereafter (the "Call
Price Determination Date"). The Remarketing Dealer shall promptly notify the
Operating Partnership of the Call Price Determination Date and the Call Price by
telephone, confirmed in writing (which may include facsimile or other electronic
transmission). The Call Price, absent manifest error, shall be binding and
conclusive upon the parties hereto.
(f) This Agreement shall not be subject to termination by the Operating
Partnership or the Company.
Section 12. Remarketing Dealer' Performance; Duty of Care. The duties and
obligations of the Remarketing Dealer shall be determined solely by the express
provisions of this Agreement and the Indenture. No implied covenants or
obligations of or against the Remarketing Dealer shall be read into this
Agreement or the Indenture. In the absence of bad faith on the part of the
Remarketing Dealer, the Remarketing Dealer may conclusively rely upon any
document furnished to it, which purports to conform to the requirements of this
Agreement and the Indenture, as to the truth of the statements expressed in any
of such documents. The Remarketing Dealer shall be protected in acting upon any
document or communication reasonably believed by it to have been signed,
presented or made by the proper party or parties. The Remarketing Dealer shall
incur no liability to the Operating Partnership or the Company or to any
Beneficial Owner or Holder of MOPPRS in its individual capacity or as
Remarketing
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Dealer for any action or failure to act in connection with the remarketing or
otherwise, except as a result of gross negligence or willful misconduct on its
part.
Section 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE.
Section 14. Term of Agreement. Unless otherwise terminated in accordance
with the provisions hereof, this Agreement shall remain in full force and effect
from the date hereof until the earlier of the first day thereafter on which no
MOPPRS are outstanding or the completion of the remarketing of the MOPPRS.
Regardless of any termination of this Agreement pursuant to any of the
provisions hereof, the obligations of the Operating Partnership pursuant to
Sections 9, 10 and 11 hereof shall remain operative and in full force and effect
until fully satisfied.
Section 15. Successors and Assigns. The rights and obligations of the
Operating Partnership or the Company hereunder may not be assigned or delegated
to any other person without the prior written consent of the Remarketing Dealer.
The rights and obligations of the Remarketing Dealer hereunder may not be
assigned or delegated to any other person without the prior written consent of
the Operating Partnership. This Agreement shall inure to the benefit of and be
binding upon the Operating Partnership, the Company and the Remarketing Dealer
and their respective successors and assigns, and will not confer any benefit
upon any other person, partnership, association or corporation other than
persons, if any, controlling the Remarketing Dealer within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, or any indemnified
party to the extent provided in Section 9 hereof, or any person entitled to
contribution to the extent provided in Section 10 hereof. The terms "successors"
and "assigns" shall not include any purchaser of any MOPPRS merely because of
such purchase.
Section 16. Headings. Section headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is agreed that
such section headings are not a part of this Agreement and will not be used in
the interpretation of any provisions of this Agreement.
Section 17. Severability. If any provision of this Agreement shall be held
or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as
applied in any particular case in any or all jurisdictions because it conflicts
with any provision of any constitution, statute, rule or public policy or for
any other reason, such circumstances shall not have the effect of rendering the
provision in question invalid, inoperative or unenforceable in any other case,
circumstance or jurisdiction, or of rendering any other provision or provisions
of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
Section 18. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
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Section 19. Amendments. This Agreement may be amended by any instrument in
writing signed by each of the parties hereto so long as this Agreement as
amended is not inconsistent with the Indenture in effect as of the date of any
such amendment.
Section 20. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing (which may include facsimile or other electronic
transmission) and shall be deemed to have been validly given or made when
delivered or mailed, registered or certified mail, return receipt requested and
postage prepaid, addressed as follows:
(a) to the Company and the Operating Partnership:
CP Limited Partnership
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
Attention: Xxxx X. XxXxxxxx
Facsimile No.: (000) 000-0000
(b) to Xxxxxxx Xxxxx:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center
Xxxxx Xxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Swaps Options Desk
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
or to such other address as the Operating Partnership or the Remarketing Dealer
shall specify in writing.
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IN WITNESS WHEREOF, each of the Operating Partnership, the Company and the
Remarketing Dealer has caused this to be executed in its
name and on its behalf by one of its duly authorized officers as of the date
first above written.
CP LIMITED PARTNERSHIP
By: Chateau Communities, Inc., one of its general
partners
By
------------------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Chief Executive Officer
By: ROC Communities, Inc., its other general
partner
By
------------------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Chief Executive Officer
CHATEAU COMMUNITIES, INC.
By
------------------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Chief Executive Officer
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By
------------------------------------------------
Authorized Signatory
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