Exhibit 4.8
, dated as of February 6, 2002 (the
"Agreement") by and between Gabelli Asset Management Inc., a New York
corporation (the "Company"), The Bank of New York, a New York banking
corporation, not individually but solely as Purchase Contract Agent (the
"Purchase Contract Agent") and as attorney-in-fact of the holders of Purchase
Contracts (as defined in the Purchase Contract Agreement (as defined herein)),
and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
(the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Company will issue $90,000,000 (or $95,000,000
if the underwriters' overallotment option is exercised in full) aggregate
Stated Amount of its FELINE PRIDESSM (the "FELINE PRIDES") under the Purchase
Contract Agreement, dated as of February 6, 2002, by and between the Purchase
Contract Agent and the Company (the "Purchase Contract Agreement"); and
WHEREAS, the FELINE PRIDES will initially consist of
3,600,000 (or 3,800,000 if the underwriters' overallotment option is exercised
in full) units referred to as "Income PRIDESSM"; and
WHEREAS, the Company will issue concurrently in connection
with the issuance of the FELINE PRIDES $90,000,000 (or $95,000,000 if the
underwriters' overallotment option is exercised in full) aggregate principal
amount of senior notes due February 17, 2007 (the "Notes") of the Company; and
WHEREAS, the Notes forming a part of the Income PRIDES will
be pledged pursuant to the Pledge Agreement (the "Pledge Agreement"), dated as
of February 6, 2002, by and among the Company, JPMorgan Chase Bank, as
collateral agent (the "Collateral Agent") and the Purchase Contract Agent, to
secure an Income PRIDES holder's obligations under the Purchase Contract on
the Purchase Contract Settlement Date; and
WHEREAS, the Notes of the Note holders electing to have
their Notes remarketed and of the Income PRIDES holders will be remarketed by
the Remarketing Agent on the third Business Day immediately preceding November
17, 2004 (the "Initial Remarketing Date"); and
WHEREAS, in the event of a Failed Initial Remarketing, the
Notes of the Note holders electing to have their Notes remarketed and of the
Income PRIDES holders who have elected not to settle the Purchase Contracts
related to their Income PRIDES by Cash Settlement and who have not settled
their Purchase Contracts early (as provided in the Purchase Contract
Agreement) will be remarketed by the Remarketing Agent on the third Business
Day immediately preceding the Purchase Contract Settlement Date; and
WHEREAS, in the event of a Successful Initial Remarketing,
the applicable interest rate on the Notes will be reset on the Initial
Remarketing Date, to the Reset Rate to be determined by the Reset Agent as the
rate that such Notes should bear in order for the Applicable Principal Amount
of the Notes to have an approximate aggregate market value of 100.5% of the
Treasury Portfolio Purchase Price on the Initial Remarketing Date, provided
that in the determination of such Reset Rate, the Company shall, if
applicable, limit the Reset Rate to the maximum rate permitted by applicable
law; and
WHEREAS, in the event of a Failed Initial Remarketing, the
applicable interest rate on the Notes that remain outstanding on and after the
Purchase Contract Settlement Date will be reset on the third Business Day
immediately preceding the Purchase Contract Settlement Date, to the Reset Rate
to be determined by the Reset Agent as the rate that such Notes should bear in
order to have an approximate market value of 100.5% of the aggregate principal
amount of the Notes on the third Business Day immediately preceding the
Purchase Contract Settlement Date, provided that in the determination of such
Reset Rate, the Company shall, if applicable, limit the Reset Rate to the
maximum rate permitted by applicable law; and
WHEREAS, the Company has requested Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") to act as
the Reset Agent and as the Remarketing Agent, and as such to perform the
services described herein; and
WHEREAS, Xxxxxxx Xxxxx is willing to act as Reset Agent and
Remarketing Agent and as such to perform such duties on the terms and
conditions expressly set forth herein;
NOW, THEREFORE, for and in consideration of the covenants
herein made, and subject to the conditions herein set forth, the parties
hereto agree as follows:
Section 1. Definitions.
Capitalized terms used and not defined in this Agreement, in
the recitals hereto or in the paragraph preceding such recitals shall have the
meanings assigned to them in the Purchase Contract Agreement or, if not
therein defined, the Pledge Agreement.
Section 2. Appointment and Obligations of Remarketing Agent.
(a) The Company hereby appoints Xxxxxxx Xxxxx and Xxxxxxx
Xxxxx hereby accepts such appointment, (i) as the Reset Agent to determine, in
consultation with the Company and in the manner provided for herein and in the
Indenture (as in effect on the date of this ), with
respect to the Notes (1) the Reset Rate that, in the opinion of the Reset
Agent, will, when applied to the Notes, enable the Applicable Principal Amount
of the Notes to have an approximate aggregate market value of 100.5% of the
Treasury Portfolio Purchase Price as of the Initial Remarketing Date and (2)
in the event of a Failed Initial Remarketing, the Reset Rate that, in the
opinion of the Reset Agent, will, when applied to the Notes, enable a Note to
have an approximate market value of 100.5% of its principal amount as of the
third Business Day preceding the Purchase Contract Settlement Date, provided,
in each case, that the Company, by notice to the Reset Agent prior to the
tenth Business Day preceding (x) November 17, 2004, in the case of the Initial
Remarketing (as defined below), or (y) the Purchase Contract Settlement Date,
in the case of the Secondary Remarketing (as defined below), shall, if
applicable, limit the Reset Rate so that it does not exceed the maximum rate
permitted by applicable law and (ii) as the exclusive Remarketing Agent
(subject to the right of Xxxxxxx Xxxxx to appoint additional remarketing
agents hereunder as described below) to (1) remarket the Notes of the Note
holders electing to have their Notes remarketed and of the Income PRIDES
holders on the Initial Remarketing Date, for settlement on November 17, 2004
and (2) in the case of a Failed Initial Remarketing, remarket the Notes of the
Note holders electing to have their Notes remarketed or of the Income PRIDES
holders who have not early settled the Purchase Contracts and who have failed
to notify the Purchase Contract Agent, on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date, of their
intention to settle the Purchase Contracts through Cash Settlement. In
connection with the remarketing contemplated hereby, the Remarketing Agent
will enter into a Supplemental (the "Supplemental
") with the Company and the Purchase Contract Agent,
which shall either be (i) substantially in the form attached hereto as Exhibit
A (with such changes as the Company and the Remarketing Agent may agree upon,
it being understood that changes may be necessary in the representations,
warranties, covenants and other provisions of the Supplemental due to changes in law or facts and circumstances or in the event
that Xxxxxxx Xxxxx is not the sole remarketing agent, and with such further
changes therein as the Remarketing Agent may reasonably request) or (ii) in
such other form as the Remarketing Agent may reasonably request, subject to
the approval of the Company (such approval not to be unreasonably withheld).
Anything herein to the contrary notwithstanding, Xxxxxxx Xxxxx shall not be
obligated to act as Remarketing Agent or Reset Agent hereunder unless the
Supplemental is in form and substance reasonably
satisfactory to Xxxxxxx Xxxxx. The Company agrees that Xxxxxxx Xxxxx shall
have the right, on 15 Business Days' notice to the Company, to appoint one or
more additional remarketing agents so long as any such additional remarketing
agents shall be reasonably acceptable to the Company. Upon any such
appointment, the parties shall enter into an appropriate amendment to this
Agreement to reflect the addition of any such remarketing agent.
(b) Pursuant to the Supplemental , the
Remarketing Agent, either as sole remarketing agent or as representative of a
group of remarketing agents appointed as aforesaid, will agree, subject to the
terms and conditions set forth herein and therein, to use its reasonable
efforts to (i) remarket, on the Initial Remarketing Date, the Notes that the
Trustee (as such term is defined in the Indenture) shall have notified the
Remarketing Agent have been tendered for, or otherwise are to be included in,
the Initial Remarketing, at a price per Note such that the aggregate price for
the Applicable Principal Amount of the Notes is approximately 100.5% of the
Treasury Portfolio Purchase Price and (ii) in the event of a Failed Initial
Remarketing, remarket, on the third Business Day immediately preceding the
Purchase Contract Settlement Date, the Notes that the Trustee shall have
notified the Remarketing Agent have been tendered for, or otherwise are to be
included in, the Secondary Remarketing, at a price of approximately 100.5% of
the aggregate principal amount of such Notes.
Notwithstanding the preceding sentence, the Remarketing
Agent shall not remarket any Notes for a price less than the price necessary
for the Applicable Principal Amount of the Notes to have an aggregate price
equal to 100% of the Treasury Portfolio Purchase Price (the "Minimum Initial
Remarketing Price"), in the case of the Initial Remarketing, or the aggregate
principal amount of such Notes, in the case of the Secondary Remarketing.
After deducting the fee specified in Section 3 below, the proceeds of such
Initial Remarketing or Secondary Remarketing, as the case may be, shall be
paid to the Collateral Agent in accordance with Section 4.6 or 6.3 of the
Pledge Agreement and Section 5.4 or 5.5 of the Purchase Contract Agreement
(each of which Sections are incorporated herein by reference). The right of
each holder of Notes or Income PRIDES to have Notes tendered for the Initial
Remarketing or the Secondary Remarketing, as the case may be, shall be limited
to the extent that (i) the Remarketing Agent conducts an Initial Remarketing
and, in the event of a Failed Initial Remarketing, a Secondary Remarketing
pursuant to the terms of this Agreement, (ii) Notes tendered have not been
called for redemption, (iii) the Remarketing Agent is able to find a purchaser
or purchasers for tendered Notes at a price of not less than the Minimum
Initial Remarketing Price, in the case of the Initial Remarketing, and 100% of
the principal amount thereof, in the case of the Secondary Remarketing and
(iv) such purchaser or purchasers deliver the purchase price therefor to the
Remarketing Agent as and when required.
(c) It is understood and agreed that neither the Remarketing
Agent nor the Reset Agent shall have any obligation whatsoever to purchase any
Notes, whether in the Initial Remarketing, Secondary Remarketing or otherwise,
and shall in no way be obligated to provide funds to make payment upon tender
of Notes for remarketing or to otherwise expend or risk their own funds or
incur or be exposed to financial liability in the performance of their
respective duties under this Agreement or the Supplemental , and, without limitation of the foregoing, the Remarketing Agent
shall not be deemed an underwriter of the remarketed Notes. The Company shall
not be obligated in any case to provide funds to make payment upon tender of
Notes for remarketing.
Section 3. Fees.
In the event of a Successful Initial Remarketing, the
Remarketing Agent shall retain as a remarketing fee (the "Remarketing Fee"),
an amount not exceeding 25 basis points (0.25%) of the Minimum Initial
Remarketing Price, from any amount received in connection with such Initial
Remarketing in excess of the Minimum Initial Remarketing Price. In the event
of a Successful Secondary Remarketing, the Remarketing Agent shall retain as
the Remarketing Fee, an amount not exceeding 25 basis points (0.25%) of the
principal amount of the remarketed Notes, from any amount received in
connection with such Secondary Remarketing in excess of the aggregate
principal amount of such remarketed Notes. In addition, the Reset Agent shall,
in either case, receive from the Company a reasonable and customary fee (the
"Reset Agent Fee"); provided, however, that if the Remarketing Agent shall
also act as the Reset Agent, then the Reset Agent shall not be entitled to
receive any such Reset Agent Fee. Payment of such Reset Agent Fee shall be
made by the Company on the Initial Remarketing Date, in the case of a
Successful Initial Remarketing, or on the third Business Day immediately
preceding the Purchase Contract Settlement Date, in the case of a Successful
Secondary Remarketing, in immediately available funds or, upon the
instructions of the Reset Agent, by certified or official bank check or checks
or by wire transfer.
Section 4. Replacement and Resignation of Remarketing Agent.
(a) The Company may in its absolute discretion replace
Xxxxxxx Xxxxx as the Remarketing Agent and as the Reset Agent hereunder by
giving notice prior to 3:00 p.m., New York City time (i) on the eleventh
Business Day immediately prior to November 17, 2004, or (ii) in the event of a
Failed Initial Remarketing, prior to 3:00 p.m., New York City time on the
eleventh Business Day immediately prior to the Purchase Contract Settlement
Date, provided, in either case, that the Company must replace Xxxxxxx Xxxxx
both as Remarketing Agent and as Reset Agent unless Xxxxxxx Xxxxx shall
otherwise agree. Any such replacement shall become effective upon the
Company's appointment of a successor to perform the services that would
otherwise be performed hereunder by the Remarketing Agent and the Reset Agent.
Upon providing such notice, the Company shall use all reasonable efforts to
appoint such a successor and to enter into a with such
successor as soon as reasonably practicable. The Company shall notify the
Purchase Contract Agent and the Collateral Agent of the appointment of any
such successor.
(b) Xxxxxxx Xxxxx may resign at any time and be discharged
from its duties and obligations hereunder as the Remarketing Agent and/or as
the Reset Agent by giving notice prior to 3:00 p.m., New York City time (i) on
the eleventh Business Day immediately prior to November 17, 2004 or (ii) in
the event of a Failed Initial Remarketing, on the eleventh Business Day
immediately prior to the Purchase Contract Settlement Date. Any such
resignation shall become effective upon the Company's appointment of a
successor to perform the services that would otherwise be performed hereunder
by the Remarketing Agent and/or the Reset Agent. Upon receiving notice from
the Remarketing Agent and/or the Reset Agent that it wishes to resign
hereunder, the Company shall appoint such a successor and enter into a
remarketing agreement with it as soon as reasonably practicable.
Section 5. Dealing in the Securities.
Each of the Remarketing Agent and the Reset Agent, when
acting hereunder or, in the case of the Remarketing Agent, under the
Supplemental Remarketing Agreement, or when acting in its individual or any
other capacity, may, to the extent permitted by law, buy, sell, hold or deal
in any of the Notes, Growth PRIDES, Income PRIDES or any other securities of
the Company. With respect to any Notes, Growth PRIDES, Income PRIDES or any
other securities of the Company owned by it, each of the Remarketing Agent and
the Reset Agent may exercise any vote or join in any action with like effect
as if it did not act in any capacity hereunder. Each of the Remarketing Agent
and the Reset Agent, in its individual capacity, either as principal or agent,
may also engage in or have an interest in any financial or other transaction
with the Company as freely as if it did not act in any capacity hereunder.
Section 6. Registration Statement and Prospectus.
(a) In connection with the Initial Remarketing, if and to
the extent required in the view of counsel (which need not be an opinion) for
each of the Remarketing Agent and the Company by applicable law, regulations
or interpretations in effect at the time of such Initial Remarketing, the
Company (i) shall use commercially reasonable efforts to have a registration
statement relating to the Notes effective under the Securities Act of 1933, as
amended (the "1933 Act") prior to the third Business Day immediately preceding
November 17, 2004, (ii) if requested by the Remarketing Agent, shall furnish a
current preliminary prospectus and, if applicable, a current preliminary
prospectus supplement to be used by the Remarketing Agent in the Initial
Remarketing not later than seven Business Days prior to November 17, 2004 (or
such earlier date as the Remarketing Agent may reasonably request) and in such
quantities as the Remarketing Agent may reasonably request and (iii) shall
furnish a current final prospectus and, if applicable, a final prospectus
supplement to be used by the Remarketing Agent in the Initial Remarketing not
later than the third Business Day immediately preceding November 17, 2004 in
such quantities as the Remarketing Agent may reasonably request, and shall pay
all expenses relating thereto.
(b) In the event of a Failed Initial Remarketing and in
connection with the Secondary Remarketing, if and to the extent required in
the view of counsel (which need not be an opinion) for either the Remarketing
Agent or the Company by applicable law, regulations or interpretations in
effect at the time of such Secondary Remarketing, the Company (i) shall use
commercially reasonable efforts to have a registration statement relating to
the Notes effective under the 1933 Act prior to the third Business Day
immediately preceding the Purchase Contract Settlement Date, (ii) if requested
by the Remarketing Agent, shall furnish a current preliminary prospectus and,
if applicable, a current preliminary prospectus supplement to be used by the
Remarketing Agent in the Secondary Remarketing not later than seven Business
Days prior to the Purchase Contract Settlement Date (or such earlier date as
the Remarketing Agent may reasonably request) and in such quantities as the
Remarketing Agent may reasonably request and (iii) shall furnish a current
final prospectus and, if applicable, a final prospectus supplement to be used
by the Remarketing Agent in the Secondary Remarketing not later than the third
Business Day immediately preceding the Purchase Contract Settlement Date in
such quantities as the Remarketing Agent may reasonably request, and shall pay
all expenses relating thereto.
(c) If in connection with the Initial Remarketing or, in the
event of a Failed Initial Remarketing, the Secondary Remarketing, it shall not
be possible, in the view of counsel (which need not be an opinion) for each of
the Remarketing Agent and the Company, under applicable law, regulations or
interpretations in effect at the time of such Initial Remarketing or such
Secondary Remarketing to register the offer and sale by the Company of the
Notes under the 1933 Act as otherwise contemplated by this Section 6, the
Company (i) shall use its reasonable efforts to take, or cause to be taken,
all action and to do, or cause to be done, all things necessary, proper and
advisable to permit and effectuate the offer and sale of the Notes in
connection with the Initial Remarketing or the Secondary Remarketing, as the
case may be, without registration under the 1933 Act pursuant to an exemption
therefrom, if available, including the exemption afforded by Rule 144A under
the rules and regulations promulgated under the 1933 Act by the Commission,
(ii) if requested by the Remarketing Agent, shall furnish a current
preliminary remarketing memorandum to be used by the Remarketing Agent in the
Initial Remarketing or the Secondary Remarketing, as the case may be, not
later than seven Business Days prior to November 17, 2004, in the case of the
Initial Remarketing, or the Purchase Contract Settlement Date, in the case of
the Secondary Remarketing (or in either case such earlier date as the
Remarketing Agent may reasonably request) and in such quantities as the
Remarketing Agent may reasonably request and (iii) shall furnish a current
final remarketing memorandum to be used by the Remarketing Agent in the
Initial Remarketing or the Secondary Remarketing, as the case may be, not
later than the third Business Day immediately preceding November 17, 2004, in
the case of the Initial Remarketing, or the Purchase Contract Settlement Date,
in the case of the Secondary Remarketing, in such quantities as the
Remarketing Agent may reasonably request, and shall pay all expenses relating
thereto.
(d) The Company shall also use its reasonable efforts to
take all such actions as may (upon advice of counsel to the Company or the
Remarketing Agent) be necessary or desirable under state securities or blue
sky laws in connection with the Initial Remarketing and the Secondary
Remarketing.
Section 7. Conditions to the Remarketing Agent's Obligations.
(a) The obligations of the Remarketing Agent and the Reset
Agent under this Agreement and, in the case of the Remarketing Agent, the
Supplemental Remarketing Agreement shall be subject to the terms and
conditions of this Agreement and the Supplemental Remarketing Agreement,
including, without limitation, the following conditions: (i) the Notes
tendered for, or otherwise to be included in the Initial Remarketing or
Secondary Remarketing, as the case may be, have not been called for
redemption, (ii) the Remarketing Agent is able to find a purchaser or
purchasers for tendered Notes (1) in the case of the Initial Remarketing, at a
price not less than Minimum Initial Remarketing Price and (2) in the case of
the Secondary Remarketing, at a price not less than 100% of the principal
amount thereof, (iii) the Purchase Contract Agent, the Collateral Agent, the
Custodial Agent, the Company and the Trustee shall have performed their
respective obligations in connection with the Initial Remarketing and, in the
event of a Failed Initial Remarketing, in connection with the Secondary
Remarketing, in each case pursuant to the Purchase Contract Agreement, the
Pledge Agreement, the Indenture, this Agreement and the Supplemental
Remarketing Agreement (including, without limitation, the Quotation Agent
giving the Remarketing Agent notice of the Treasury Portfolio Purchase Price
no later than 10:00 a.m., New York City time, on the fourth Business Day prior
to November 17, 2004, in the case of the Initial Remarketing, and the
Quotation Agent giving the Remarketing Agent notice of the aggregate principal
amount, as the case may be, of Notes to be remarketed, no later than 10:00
a.m., New York City time, on the fourth Business Day prior to the Purchase
Contract Settlement Date, in the case of the Secondary Remarketing, and, in
each case, the Collateral Agent and the Custodial Agent concurrently
delivering the Notes to be remarketed to the Remarketing Agent), (iv) no Event
of Default (as defined in the Indenture) shall have occurred and be
continuing, (v) the accuracy of the representations and warranties of the
Company included and incorporated by reference in this Agreement and the
Supplemental Remarketing Agreement or in certificates of any officer of the
Company delivered pursuant to the provisions included or incorporated by
reference in this Agreement or the Supplemental Remarketing Agreement, (vi)
the performance by the Company of its covenants and other obligations included
and incorporated by reference in this Agreement and the Supplemental
Remarketing Agreement and (vii) the satisfaction of the other conditions set
forth and incorporated by reference in this Agreement and the Supplemental
Remarketing Agreement.
(b) If at any time during the term of this Agreement, any
Event of Default (as defined in the Indenture) or event that with the passage
of time or the giving of notice or both would become an Indenture Event of
Default has occurred and is continuing under the Indenture, then the
obligations and duties of the Remarketing Agent and the Reset Agent under this
Agreement and the Supplemental Remarketing Agreement shall be suspended until
such default or event has been cured. The Company will promptly give the
Remarketing Agent notice of all such defaults and events of which the Company
is aware.
Section 8. Termination of Remarketing Agreement.
This Agreement shall terminate as to any Remarketing Agent
or Reset Agent that is replaced on the effective date of its replacement
pursuant to Section 4(a) hereof or pursuant to Section 4(b) hereof.
Notwithstanding any such termination, the obligations set forth in Section 3
hereof shall survive and remain in full force and effect until all amounts
payable under said Section 3 shall have been paid in full; provided, however,
that if any Reset Agent resigns prior to a successful remarketing, then the
obligations set forth in Section 3 hereof shall not survive the termination of
this Agreement and no fee shall be payable to such Reset Agent in such
capacity. In addition, each former Remarketing Agent and Reset Agent shall be
entitled to the rights and benefits under Section 10 of this Agreement
notwithstanding the replacement or resignation of such Remarketing Agent or
Reset Agent.
Section 9. Remarketing Agent's Performance; Duty of Care.
The duties and obligations of the Remarketing Agent and the Reset Agent shall
be determined solely by the express provisions of this Agreement and, in the
case of the Remarketing Agent, the Supplemental Remarketing Agreement. No
implied covenants or obligations of or against the Remarketing Agent or the
Reset Agent shall be read into this Agreement or, in the case of the
Remarketing Agent, the Supplemental Remarketing Agreement. In the absence of
bad faith on the part of the Remarketing Agent or the Reset Agent, as the case
may be, the Remarketing Agent and the Reset Agent each may conclusively rely
upon any document furnished to it which purports to conform to the
requirements of this Agreement or the Supplemental Remarketing Agreement, as
the case may be, as to the truth of the statements expressed therein. Each of
the Remarketing Agent and the Reset Agent shall be protected in acting upon
any document or communication reasonably believed by it to be signed,
presented or made by the proper party or parties. Neither the Remarketing
Agent nor the Reset Agent shall have any obligation to determine whether there
is any limitation under applicable law on the Reset Rate on the Notes or, if
there is any such limitation, the maximum permissible Reset Rate on the Notes,
and they shall rely solely upon written notice from the Company (which the
Company agrees to provide prior to the tenth Business Day before November 17,
2004, in the case of the Initial Remarketing, and prior to the tenth Business
Day before Purchase Contract Settlement Date, in the case of the Secondary
Remarketing) as to whether or not there is any such limitation and, if so, the
maximum permissible Reset Rate. Neither the Remarketing Agent nor the Reset
Agent shall incur any liability under this Agreement or the Supplemental
Remarketing Agreement, as the case may be, to any beneficial owner or holder
of Notes, or other securities, either in its individual capacity or as
Remarketing Agent or Reset Agent, as the case may be, for any action or
failure to act in connection with the Remarketing or otherwise in connection
with the transactions contemplated by this Agreement or the Supplemental
Remarketing Agreement, except to the extent that it shall have been determined
by a court of competent jurisdiction by final and nonappealable judgment that
such liability has resulted from the willful misconduct, bad faith or gross
negligence of the Remarketing Agent or the Reset Agent. The provisions of this
Section 9 shall survive any termination of this Agreement and shall also
continue to apply to every Remarketing Agent and Reset Agent notwithstanding
their resignation or removal.
Section 10. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Remarketing Agent, the Reset Agent and their respective directors, officers,
employees, agents, affiliates and each person, if any, who controls the
Remarketing Agent or the Reset Agent within the meaning of either Section 15
of the 1933 Act or Section 20 of the Securities Exchange Act of 1934, as
amended (the "1934 Act") (the Remarketing Agent, the Reset Agent and each such
person or entity being an "Agent Indemnified Party"), as follows:
(i) from and against any and all losses, claims, damages,
liabilities and expenses whatsoever, joint or several, as incurred, to which
such Agent Indemnified Party may become subject under any applicable federal
or state law, or otherwise, and related to, arising out of, or based on (A)
the failure to have an effective Registration Statement (as defined in the
Supplemental Remarketing Agreement) under the 1933 Act relating to the Notes,
as the case may be, if required, or the failure to satisfy the prospectus
delivery requirements of the 1933 Act because the Company failed to provide
the Remarketing Agent with a Prospectus (as defined in the Supplemental
Remarketing Agreement) for delivery, or (B) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
any amendment thereto (including any information deemed to be a part of the
Registration Statement at the time it became effective pursuant to paragraph
(b) of Rule 430A under the 1933 Act, if applicable), or the omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (C) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus, or any amendment or supplement
thereto, or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (D) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary remarketing memorandum or any final remarketing memorandum, or any
amendment or supplement thereto, or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or (E)
any untrue statement or alleged untrue statement of a material fact contained
in any other documents (including, without limitation, any documents
incorporated or deemed to be incorporated by reference in any such documents)
provided by the Company for use in connection with the remarketing of the
Notes or any of the transactions related thereto, or (F) any breach by the
Company of any of the representations, warranties or agreements included or
incorporated by reference in this Agreement or the Supplemental Remarketing
Agreement, or (G) any failure by the Company to make or consummate the
remarketing of the Notes (including, without limitation, any Failed Initial
Remarketing or Failed Secondary Remarketing) or the withdrawal, recession,
termination, amendment or extension of the terms of such remarketing, or (H)
any failure on the part of the Company to comply, or any breach by the Company
of, any of the provisions included or incorporated by reference in this
Agreement, the Supplemental Remarketing Agreement, the Purchase Contract
Agreement, the Income PRIDES, the Growth PRIDES, the Pledge Agreement, the
Indenture or the Notes (collectively, the "Operative Documents"), or (I) the
remarketing of the Notes, as the case may be, or any other transaction
contemplated by any of the Operative Documents, or the engagement of the
Remarketing Agent or the Reset Agent pursuant to, or the performance by the
Remarketing Agent or the Reset Agent of the respective services contemplated
by, this Agreement or the Supplemental Remarketing Agreement, whether or not
the Initial Remarketing or the Secondary Remarketing or the reset of the
interest rate on the Notes as contemplated herein actually occur;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever related to, arising out of or based on any matter described in (i)
above; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the Remarketing
Agent or the Reset Agent, as the case may be), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever related to, arising out of or based on any
matter described in (i) above to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that the Company shall not be liable under clause (i)(B),
(i)(C), (i)(D) or (i)(E) to the extent any such loss, claim, damage, liability
or expense arises out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by the Remarketing Agent or the Reset
Agent expressly for use in the Registration Statement (or any amendment
thereto), any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or any preliminary or final remarketing memorandum (or any
amendment or supplement thereto) or any other documents used in connection
with remarketing of the Notes, as the case may be;
provided, further, that with respect to any untrue statement or omission of a
material fact made in any preliminary prospectus, the indemnity agreement
contained in this Section 10(a) shall not inure to the benefit of the
Remarketing Agent to the extent that any such loss, claim, damage or liability
of the Remarketing Agent occurs under the circumstance where (w) the Company
had previously furnished copies of the Prospectus to Xxxxxxx Xxxxx, (x)
delivery of the Prospectus was required to be made to such person, (y) the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission of a material fact contained in the preliminary prospectus
was corrected in the Prospectus, and (z) there was not sent or given to such
person, at or prior to the written confirmation of the sale of Notes to such
person, a copy of the Prospectus and the delivery thereof would have
constituted a complete defense to such person's claim in respect of such
untrue statement of alleged untrue statement or omission; provided, further,
that the Company shall not be liable under clause (i)(G) or (i)(J) to the
extent that such loss, claim, damage, liability or expense has, by final
judicial determination, resulted from the willful misconduct, bad faith or
gross negligence of the Remarketing Agent or the Reset Agent.
Other than as set forth in Section 10(b) below, the Company
agrees that no Agent Indemnified Party shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to the Company or its
respective security holders or creditors relating to or arising out of the
engagement of the Remarketing Agent or the Reset Agent pursuant to, or the
performance by the Remarketing Agent or the Reset Agent of their respective
services contemplated by, this Agreement or the Supplemental Remarketing
Agreement except to the extent that any loss, claim, damage, liability or
expense is found in a final judgment in a court of competent jurisdiction to
have resulted from the willful misconduct, gross negligence or bad faith of
the Remarketing Agent or the Reset Agent, as the case may be.
The Company agrees that, without the prior written consent
of the Remarketing Agent or the Reset Agent, as the case may be, it will not
settle, compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any action or claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 10
(a) (whether or not Xxxxxxx Xxxxx or any other Agent
Indemnified Party is an actual or potential party to such claim, action or
proceeding), unless such settlement, compromise or consent (i) includes an
unconditional release of each Agent Indemnified Party from all liability
arising out of such litigation, investigation, proceeding, action or claim and
(ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or on behalf of an Agent Indemnified Party.
(b) The Remarketing Agent and the Reset Agent, severally and
not jointly, agree to indemnify and hold harmless the Company, its directors
and its officers who sign the Registration Statement, and each person, if any,
who controls the Company within the meaning of either Section 15 of the 1933
Act or Section 20 of the 1934 Act (the "Company Indemnified Parties") to the
same extent as the foregoing indemnity from the Company to the Agent
Indemnified Parties, but only with reference to information relating to such
Remarketing Agent and Reset Agent furnished to the Company in writing by such
Remarketing Agent and Reset Agent expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto or any other documents used in connection with the
Remarketing of the Notes, as the case may be.
Each of the Remarketing Agent and the Reset Agent agrees
that, without the Company's prior written consent, it will not settle,
compromise or consent to the entry of any judgement with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any action or claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 10(b)
(whether or not the Company or any other Company Indemnified Party is an
actual or potential party to such claim, action or proceeding), unless such
settlement, compromise or consent (i) includes an unconditional release of
each Company Indemnified Party from all liability arising out of such
litigation, investigation, proceeding, action or claim and (ii) does not
include a statement as to, or an admission of fault, culpability or a failure
to act by or on behalf of a Company Indemnified Party.
(c) If the indemnification provided for in Section 10(a) or
10(b) hereof is for any reason unavailable to or insufficient to hold harmless
any party seeking indemnification thereunder (an "Indemnified Party") in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then the Company on the one hand, and the Remarketing Agent and the
Reset Agent on the other hand, shall contribute to the aggregate amount of
such losses, liabilities, claims, damages and expenses incurred by such
Indemnified Party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Remarketing Agent and the Reset Agent on the other hand from the remarketing
of the Notes contemplated hereby or (ii) if the allocation provided by clause
(i) is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the Remarketing
Agent and the Reset Agent on the other hand in connection with the statements,
omissions or other matters which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Remarketing Agent and the Reset Agent on the other hand in connection with the
remarketing of the Notes contemplated hereby shall be deemed to be in the same
respective proportions as the aggregate principal amount of the Notes which
are or are to be remarketed bears to the aggregate fees actually received by
the Remarketing Agent and the Reset Agent under Section 3 hereof. The relative
fault of the Company on the one hand and the Remarketing Agent and the Reset
Agent on the other hand (i) in the case of an untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact, shall be determined by reference to, among other things,
whether such untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied
by the Company on the one hand or by the Remarketing Agent or the Reset Agent
on the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission
and (ii) in the case of any other action or omission shall be determined by
reference to, among other things, whether such action or omission was taken or
omitted to be taken by the Company on the one hand, or by the Remarketing
Agent or the Reset Agent, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to prevent or correct such
action or omission. The Company, the Remarketing Agent and the Reset Agent
agree that it would not be just and equitable if contribution pursuant to this
Section 10(c) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this Section 10(c). The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an Indemnified Party and
referred to above in this Section 10(c) shall be deemed to include any legal
or other expenses incurred by such Indemnified Party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or any
such omission or alleged omission or any other such action or omission;
provided, however, that to the extent permitted by applicable law, in no event
shall the Remarketing Agent or the Reset Agent be required to contribute any
amount which, in the aggregate, exceeds the aggregate fees received by them
under Section 3 of this Agreement. No investigation or failure to investigate
by any Indemnified Party shall impair the foregoing indemnification and
contribution agreement or any rights an Indemnified Party may have. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(d) In the event an Agent Indemnified Party is requested or
required to appear as a witness in any action brought by or on behalf of or
against the Company, the Company agrees to reimburse the Remarketing Agent or
the Reset Agent, as the case may be, for all reasonable expenses, as incurred,
which are incurred by the Remarketing Agent or the Reset Agent, as the case
may be, in connection with such Agent Indemnified Party's appearing and
preparing to appear as such a witness, including, without limitation, the
reasonable fees and disbursements of its legal counsel, and to compensate the
Remarketing Agent or the Reset Agent, as the case may be, in an amount to be
mutually agreed upon.
(e) Promptly after receipt by an Indemnified Party of
written notice of any claim or commencement of an action or proceeding with
respect to which indemnification may be sought hereunder, such Indemnified
Party will notify the party from whom indemnification is sought (the
"Indemnifying Party") in writing of such claim or of the commencement of such
action or proceeding, but failure to so notify the Indemnifying Party will not
relieve the Indemnifying Party from any liability which it may have to such
Indemnified Party under this indemnification and contribution agreement except
to the extent the Indemnifying Party was materially prejudiced by such failure
to notify, and in any event will not relieve the Indemnifying Party from any
other liability that it may have to such Indemnified Party. The Indemnified
Party, shall retain counsel reasonably satisfactory to the Indemnified Party
(or Xxxxxxx Xxxxx in the case of any Agent Indemnified Party) to represent the
Indemnified Party and any others the Company may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any Indemnified Party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such Indemnified Party unless (i) the Company shall have
agreed in writing to pay such fees and expenses, (ii) the Company shall have
failed to take reasonable steps necessary to defend diligently any claim
within ten calendar days after receiving written notice from the Indemnified
Party that that Indemnified Party believes the Company has failed to take such
steps or (iii) the named parties to any such proceeding (including any
impleaded parties) include both the Company and the Indemnified Party and
representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them. It is understood that
the Company shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such Indemnified Parties, and that all such fees and expenses shall be
reimbursed as they are incurred after receipt of adequate documentation
thereof.
(f) Anything herein or in the Supplemental Remarketing
Agreement to the contrary notwithstanding, the provisions of this Section 10,
and the rights of the Remarketing Agent, the Reset Agent and the other
Indemnified Parties hereunder, shall be in addition to, and not in limitation
of, any rights or benefits (including, without limitation, rights to
indemnification or contribution) which the Remarketing Agent, the Reset Agent
or any other Indemnified Party may have under any other instrument or
agreement.
Section 11. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
Section 12. Term of Agreement.
(a) Unless otherwise terminated in accordance with the
provisions hereof and except as otherwise provided herein, this Agreement
shall remain in full force and effect from the date hereof until the first day
thereafter on which no Notes are outstanding, or, if earlier, the Business Day
immediately following November 17, 2004, in the case of a Successful Initial
Remarketing, or the Business Day immediately following the Purchase Contract
Settlement Date, in the case of a Successful Secondary Remarketing. Anything
herein to the contrary notwithstanding, the provisions of the last section of
Section 8 hereof and the provisions of Sections 3, 9, 10 and 12(b) hereof
shall survive any termination of this Agreement and remain in full force and
effect.
(b) All representations and warranties included or
incorporated by reference in this Agreement, or the Supplemental Remarketing
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto or thereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of the
Remarketing Agent, the Reset Agent or any of their controlling persons, or by
or on behalf of the Company or the Purchase Contract Agent, and shall survive
the remarketing of the Notes.
Section 13. Successors and Assigns. The rights and
obligations of the Company and the Purchase Contract Agent (both in its
capacity as Purchase Contract Agent and as attorney-in-fact) hereunder may not
be assigned or delegated to any other person without the prior written consent
of the Remarketing Agent and the Reset Agent. The rights and obligations of
the Remarketing Agent and the Reset Agent hereunder may not be assigned or
delegated to any other person without the prior written consent of the
Company, except that the Remarketing Agent shall have the right to appoint
additional remarketing agents as provided herein. This Agreement shall inure
to the benefit of and be binding upon the Company, the Purchase Contract
Agent, the Remarketing Agent and the Reset Agent and their respective
successors and assigns and the other Indemnified Parties (as defined in
Section 10 hereof) and the successors, assigns, heirs and legal
representatives of the Indemnified Parties. The terms "successors" and
"assigns" shall not include any purchaser of Notes merely because of such
purchase.
Section 14. Headings. Section headings have been inserted in
this Agreement and the Supplemental Remarketing Agreement as a matter of
convenience of reference only, and it is agreed that such section headings are
not a part of this Agreement or the Supplemental Remarketing Agreement and
will not be used in the interpretation of any provision of this Agreement or
the Supplemental Remarketing Agreement.
Section 15. Severability. If any provision of this Agreement
or the Supplemental Remarketing Agreement shall be held or deemed to be or
shall, in fact, be invalid, inoperative or unenforceable as applied in any
particular case in any or all jurisdictions because it conflicts with any
provisions of any constitution, statute, rule or public policy or for any
other reason, then, to the extent permitted by law, such circumstances shall
not have the effect of rendering the provision in question invalid,
inoperative or unenforceable in any other case, circumstances or jurisdiction,
or of rendering any other provision or provisions of this Agreement or the
Supplemental Remarketing Agreement, as the case may be, invalid, inoperative
or unenforceable to any extent whatsoever.
Section 16. Counterparts. This Agreement and the
Supplemental Remarketing Agreement may be executed in counterparts, each of
which shall be regarded as an original and all of which shall constitute one
and the same document.
Section 17. Amendments. This Agreement and the Supplemental
Remarketing Agreement may be amended by any instrument in writing signed by
the parties hereto. The Company and the Purchase Contract Agent agree that
they will not enter into, cause or permit any amendment or modification of the
Purchase Contract Agreement, the Indenture, the Pledge Agreement, the Notes,
the FELINE PRIDES or any other instruments or agreements relating to the Notes
or the FELINE PRIDES which would adversely affect the rights, duties or
obligations of the Remarketing Agent or the Reset Agent without the prior
written consent of the Remarketing Agent or the Reset Agent, as the case may
be.
Section 18. Notices. Unless otherwise specified, any
notices, requests, consents or other communications given or made hereunder or
pursuant hereto shall be made in writing or transmitted by any standard form
of telecommunication, including telephone or telecopy, and confirmed in
writing. All written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered or mailed,
registered or certified mail, return receipt requested and postage prepaid.
All such notices, requests, consents or other communications shall be
addressed as follows: if to the Company, to Gabelli Asset Management Inc., Xxx
Xxxxxxxxx Xxxxxx, Xxx, Xxx Xxxx, 00000, Attention: Xxxxx X. XxXxx, Vice
President and General Counsel; if to the Remarketing Agent or Reset Agent, to
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, at
Four World Financial Center, Xxxxx Xxxxx 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Equity Capital Markets, with a copy to Shearman & Sterling, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx;
and if to the Purchase Contract Agent, to The Bank of New York, at 0 Xxxx
Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Administration, or to such other address as any of the above shall specify to
the other in writing.
Section 19. Information. The Company agrees to furnish the
Remarketing Agent and the Reset Agent with such information and documents as
the Remarketing Agent or the Reset Agent may reasonably request in connection
with the transactions contemplated by this Remarketing Agreement and the
Supplemental Remarketing Agreement, and make reasonably available to the
Remarketing Agent, the Reset Agent and any accountant, attorney or other
advisor retained by the Remarketing Agent or the Reset Agent such information
that parties would customarily require in connection with a due diligence
investigation conducted in accordance with applicable securities laws and
cause the Company's officers, directors, employees and accountants to
participate in all such discussions and to supply all such information
reasonably requested by any such person in connection with such investigation.
IN WITNESS WHEREOF, each of the Company, the Purchase
Contract Agent and the Remarketing Agent has caused this Agreement to be
executed in its name and on its behalf by one of its duly authorized
signatories as of the date first above written.
GABELLI ASSET MANAGEMENT INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxx
Vice President and
Chief Financial Officer
CONFIRMED AND ACCEPTED:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: /s/ Xxx Xxxxxx
--------------------------
Authorized Signatory
The Bank of New York
not individually but solely as Purchase Contract
Agent and as attorney-in-fact for the holders of
the Purchase Contracts
By: /s/ Xxxxxxx Xxxx
--------------------------
Name: Xxxxxxx Xxxx
Title: Assistant Vice President
Exhibit A to
Remarketing Agreement
Form of Supplemental Remarketing Agreement
Supplemental Remarketing Agreement dated _____________, ____
among Gabelli Asset Management Inc., a New York corporation (the "Company"),
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "Remarketing Agent"),
and The Bank of New York, as Purchase Contract Agent and attorney-in-fact for
the Holders of the Purchase Contracts (as such terms are defined in the
Purchase Contract Agreement referred to in Schedule I hereto).
NOW, THEREFORE, for and in consideration of the covenants
herein made, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used and not defined in
this Agreement shall have the meanings assigned to them in the Remarketing
Agreement dated as of February 6, 2002 (the "Remarketing Agreement") among the
Company, the Purchase Contract Agent and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated or, if not defined in the Remarketing
Agreement, the meanings assigned to them in the Purchase Contract Agreement
(as defined in Schedule I hereto).
2. Registration Statement and Prospectus. The Company has
filed with the Securities and Exchange Commission, and there has become
effective, a registration statement on Form S-3, including a prospectus,
relating to the Securities (as such term is defined on Schedule I hereto).
Such Registration Statement, as amended, and including the information deemed
to be a part thereof pursuant to Rule 430A under the 1933 Act, and the
documents incorporated or deemed to be incorporated by reference therein, are
hereinafter called, collectively, the "Registration Statement"; (the related
preliminary prospectus dated ___________, including the documents incorporated
or deemed to be incorporated by reference therein, [and preliminary prospectus
supplemented dated __________] are hereinafter called, [collectively] the
"preliminary prospectus";] and the related prospectus dated , including the
documents incorporated or deemed to be incorporated by reference therein, [and
prospectus supplement dated ________] are hereinafter called, [collectively,]
the "Prospectus." The Company has provided copies of the Registration
Statement [, the preliminary prospectus] and the Prospectus to the Remarketing
Agent, and hereby consents to the use of the [preliminary prospectus] and the
Prospectus in connection with the remarketing of the Securities. [IN THE EVENT
THAT A REGISTRATION STATEMENT IS NOT POSSIBLE OR NOT REQUIRED, INSERT THE
FOLLOWING: The Company has provided to the Remarketing Agent, for use in
connection with remarketing of the Securities (as such term is defined on
Schedule I hereto), a [preliminary remarketing memorandum and] remarketing
memorandum and [describe other materials, if any]. Such remarketing memorandum
(including the documents incorporated or deemed to be incorporated by
reference therein, [and] [describe other materials] are hereinafter called,
collectively, the "Prospectus," [and such preliminary marketing memorandum
(including the documents incorporated or deemed to be incorporated by
reference therein) is hereinafter called a "preliminary prospectus")]. The
Company hereby consents to the use of the Prospectus [and the preliminary
prospectus] in connection with the remarketing of the Securities]. All
references in this Agreement to amendments or supplements to the Registration
Statement [, the preliminary prospectus] or the Prospectus shall be deemed to
mean and include the filing of any document under the 1934 Act, which is
incorporated or deemed to be incorporated by reference in the Registration
Statement [, the preliminary prospectus] or the Prospectus, as the case may
be.
3. Provisions Incorporated by Reference.
(a) Subject to Section 3(b), the provisions of the
Underwriting Agreement (other than Section 2, Section 3, Section 5, Section 6,
Section 9 and Section 10 thereof) are incorporated herein by reference,
mutatis mutandis, and the Company hereby makes the representations and
warranties, and agrees to comply with the covenants and obligations, set forth
in the provisions of the Underwriting Agreement incorporated by reference
herein, as modified by the provisions of Section 3(b) hereof.
(b) With respect to the provisions of the Underwriting
Agreement incorporated herein, for the purposes hereof, (i) all references
therein to the "Underwriter" or "Underwriters" shall be deemed to refer to the
Remarketing Agent; (ii) all references therein to the "Securities" or "Initial
Securities" shall be deemed to refer to the Securities as defined herein;
(iii) all references therein to the "Closing Date" shall be deemed to refer to
the Remarketing Closing Date specified in Schedule I hereto; (iv) all
references therein to the "Registration Statement" [, the "preliminary
prospectus"] or the "Final Prospectus" shall be deemed to refer to the
Registration Statement[, the preliminary prospectus] and the Prospectus,
respectively, as defined herein; (v) all references therein to this
"Agreement," the "Underwriting Agreement," "hereof," "herein" and all
references of similar import, shall be deemed to mean and refer to this
Supplemental Remarketing Agreement; (vi) all references therein to "the date
hereof," "the date of this Agreement" and all similar references shall be
deemed to refer to the date of this Supplemental Remarketing Agreement; (vii)
all references therein to any "settlement date" shall be disregarded; and
(viii) [other changes, including changes relating to the offer and sale of the
Securities in connection with the Remarketing without registration under the
1933 Act in reliance upon an exemption therefrom (including the exemption
afforded by Rule 144A)].]
4. Remarketing. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth or
incorporated by reference herein and in the Remarketing Agreement, the
Remarketing Agent agrees to use its reasonable efforts to remarket, in the
manner set forth in Section 2(b) of the Remarketing Agreement, the aggregate
principal amount, as the case may be, of Securities set forth in Schedule I
hereto at a purchase price not less than 100% of the [Minimum Initial
Remarketing Price] [aggregate principal amount of the Securities]. In
connection therewith, the registered holder or holders thereof agree, in the
manner specified in Section 5 hereof, to pay to the Remarketing Agent a
Remarketing Fee equal to an amount not exceeding 25 basis points (0.25%) of
[the Minimum Initial Remarketing Price] [such aggregate principal amount,]
payable by deduction from any amount received in connection from such
[Initial][Secondary] Remarketing in excess of the [Minimum Initial Remarketing
Price] [aggregate principal amount of the Securities]. The right of each
holder of Securities to have Securities tendered for purchase shall be limited
to the extent set forth in the last sentence of Section 2(b) of the
Remarketing Agreement (which is incorporated by reference herein). As more
fully provided in Section 2(c) of the Remarketing Agreement (which is
incorporated by reference herein), the Remarketing Agent is not obligated to
purchase any Securities in the remarketing or otherwise, and neither the
Company nor the Remarketing Agent shall be obligated in any case to provide
funds to make payment upon tender of Securities for remarketing.
5. Delivery and Payment. Delivery of payment for the
remarketed Securities by the purchasers thereof identified by the Remarketing
Agent and payment of the Remarketing Fee shall be made on the Remarketing
Closing Date at the location and time specified in Schedule I hereto (or such
later date not later than five Business Days after such date as the
Remarketing Agent shall designate), which date and time may be postponed by
agreement between the Remarketing Agent and the Company. Delivery of the
remarketed Securities and payment of the Remarketing Fee shall be made to the
Remarketing Agent against payment by the respective purchasers of the
remarketed Securities of the consideration therefor as specified herein, which
consideration shall be paid to the Collateral Agent for the account of the
persons entitled thereto by certified or official bank check or checks drawn
on or by a New York Clearing House bank and payable in immediately available
funds or in immediately available funds by wire transfer to an account or
accounts designated by the Collateral Agent.
If the Securities are not represented by a Global Security
held by or on behalf of The Depository Trust Company, certificates for the
Securities shall be registered in such names and denominations as the
Remarketing Agent may request not less than one full Business Day in advance
of the Remarketing Closing Date, and the Company, the Collateral Agent and the
registered holder or holders thereof agree to have such certificates available
for inspection, packaging and checking by the Remarketing Agent in New York,
New York not later than 1:00 p.m. on the Business Day prior to the Remarketing
Closing Date.
6. Notices. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or pursuant
hereto shall be made in writing or transmitted by any standard form of
telecommunication, including telephone or telecopy, and confirmed in writing.
All written notices and confirmations of notices by telecommunication shall be
deemed to have been validly given or made when delivered or mailed, registered
or certified mail, return receipt requested and postage prepaid. All such
notices, requests, consents or other communications shall be addressed as
follows: if to the Company, to Gabelli Asset Management Inc., Xxx Xxxxxxxxx
Xxxxxx, Xxx, Xxx Xxxx, 00000, Attention: Xxxxx X. XxXxx, Vice President and
General Counsel; if to the Remarketing Agent or Reset Agent, to Xxxxxxx Xxxxx
& Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, at Four World
Financial Center, Xxxxx Xxxxx 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Equity Capital Markets, with a copy to Shearman & Sterling, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx; and if to
the Purchase Contract Agent, to The Bank of New York, at 0 Xxxx Xxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Administration, or
to such other address as any of the above shall specify to the other in
writing.
7. Conditions to Obligations of Remarketing Agent. Anything
herein to the contrary notwithstanding, the parties hereto agree (and the
holders and beneficial owners of the Securities will be deemed to agree) that
the obligations of the Remarketing Agent under this Agreement and the
Remarketing Agreement are subject to the satisfaction of the conditions set
forth in Section 7 of the Remarketing Agreement (which are incorporated herein
by reference), and to the satisfaction, on the Remarketing Closing Date, of
the conditions incorporated by reference herein from Section 6 of the
Underwriting Agreement as modified by Section 3(b) hereof (including, without
limitation, the delivery of opinions of counsel, officers' certificates and
accountants' comfort letters in form and substance satisfactory to the
Remarketing Agent, the accuracy as of the Remarketing Closing Date of the
representations and warranties of the Company included and incorporated by
reference herein and the performance by the Company of its obligations under
the Remarketing Agreement and this Agreement as and when required hereby and
thereby). In addition, anything herein or in the Remarketing Agreement to the
contrary notwithstanding, the Remarketing Agreement and this Agreement may be
terminated by the Remarketing Agent, by notice to the Company at any time
prior to the time of settlement on the Remarketing Closing Date, if any of the
events or conditions set forth in Section 10 of the Underwriting Agreement, as
modified by Section 3(b) hereof, shall have occurred or shall exist.
8. Indemnity and Contribution. Anything herein to the
contrary notwithstanding, the Remarketing Agent shall be entitled to indemnity
and contribution on the terms and conditions set forth in the Remarketing
Agreement.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the Remarketing Agent.
Very truly yours,
GABELLI ASSET MANAGEMENT INC.
By:__________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By:_________________________
Authorized Signatory
[Add other Remarketing Agents, if any]
The Bank of New York
not individually but solely as Purchase Contract
Agent and as attorney-in-fact for the holders of
the Purchase Contracts
By:_________________________
Name:
Title:
SCHEDULE I
Securities subject to the remarketing: Senior Notes due February 17, 2007 of
the Company (the "Securities").
Purchase Contract Agreement, dated as of February 6, 2002 (the "Purchase
Contract Agreement") by and between Gabelli Asset Management Inc., a
New York corporation, and The Bank of New York, a New York banking
corporation.
Pledge Agreement dated as of February 6, 2002 (the "Pledge Agreement") by
and between Gabelli Asset Management Inc., a New York corporation,
JPMorgan Chase Bank, and The Bank of New York.
Indenture dated as of February 6, 2002 (the "Base Indenture") by and between
Gabelli Asset Management Inc., a New York corporation, and The Bank
of New York.
First Supplemental Indenture, dated as of February 6, 2002 (the "First
Supplemental Indenture" and, together with the Base Indenture, the
"Indenture") by and between Gabelli Asset Management Inc., a New York
corporation, and The Bank of New York.
[Minimum Initial Remarketing Price]
[Aggregate Principal Amount of Securities: $ ____________]
Purchase Agreement, dated January 31, 2002 (the "Underwriting Agreement")
among Gabelli Asset Management Inc. and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated and Gabelli & Company, Inc.
Remarketing Closing Date, Time and Location:
