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EXHIBIT 1(c)
REMARKETING AND INTEREST CALCULATION AGREEMENT
REMARKETING AND INTEREST CALCULATION AGREEMENT, dated as of January 15,
1999 (the "Remarketing and Interest Calculation Agreement"), among
Xxxxxxxx-Xxxxxx Industries, Inc., a Delaware corporation (the "Company"), The
First National Bank of Chicago (the "Bank" and, in its capacity as the call
holder hereunder, the "Call Holder") and First Chicago Capital Markets, Inc.
("FCCM" and, in its capacity as calculation agent hereunder, the "Calculation
Agent").
WHEREAS, the Company has issued $250,000 aggregate principal amount of
its 6.08% Market Value Put securities ("MVPs") pursuant to a Restated Indenture,
dated as of September 1, 1991 (the "Senior Indenture"), between the Company and
Chase Bank of Texas, National Association (successor to Texas Commerce Bank
National Association as successor trustee to First City, Texas-Houston, National
Association, which was formerly First City National Bank of Houston) (the
"Trustee"); and
WHEREAS, the MVPs have been sold and delivered initially pursuant to an
underwriting agreement, dated January 12, 1999, between the Company and FCCM,
Chase Securities Inc. and NationsBanc Xxxxxxxxxx Securities LLC (the
"Underwriting Agreement"); and
WHEREAS, the Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
33-65055) under the Securities Act of 1933, as amended (the "Securities Act"),
in connection with the offering of, among other securities, Debt Securities of
the Company, which registration statement was declared effective by order of the
Commission on January 11, 1996, and has 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, FCCM has transferred without recourse, for fair market value,
to the Bank its right to remarket the MVPs on the Remarketing Date, and the Bank
is prepared to act as the Call Holder and FCCM is prepared to act as the
Calculation Agent, in each case, with respect to the remarketing of the MVPs on
January 18, 2000 (the "Remarketing Date") and, if applicable, on the Additional
Remarketing Date thereafter, 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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"Market Value Put securities" and "MVPs" are service marks owned by First
Chicago Capital Markets, Inc.
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Section 1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Senior Indenture and
in the form of the MVPs. Unless the context otherwise requires, the Call Holder,
as used herein, shall also include the Calculation Agent.
"Adjusted Dollar Price" shall mean, with respect to the Additional
Remarketing Date, the Dollar Price as of the Remarketing Date (determined by the
Calculation Agent on the third Business Day prior to the Remarketing Date) plus
the product of (i) such Dollar Price less the aggregate principal amount of the
MVPs outstanding as of the Remarketing Date, (ii) the weighted average per annum
Interim Period Interest Rate for the Interim Period, and (iii) the number of
days in the Interim Period divided by 360.
"Additional Remarketing Date" shall have the meaning assigned to it in
Section 4 hereof.
"Applicable Spread" shall mean the lowest bid, expressed as a spread
(in the form of a percentage or in basis points) above the Base Rate, obtained
by the Calculation Agent on the Determination Date from the bids quoted by up to
five Reference Corporate Dealers for the full aggregate principal amount of the
MVPs at the Dollar Price, but assuming (i) an issue date equal to the
Remarketing Date (if such date is not the Interim Period Remarketing Date) or
the Additional Remarketing Date (in the event of an Interim Period), with
settlement on such date without accrued interest, (ii) a maturity date equal to
the Maturity Date of the MVPs, and (iii) a stated annual interest rate, payable
semi-annually on the Interest Payment Dates for the MVPs, equal to the Base Rate
plus the spread bid by the applicable Reference Corporate Dealer.
"Bank" shall mean The First National Bank of Chicago.
"Base Rate" shall mean 4.68% per annum.
"Basic Spread" shall mean the lowest firm commitment bid expressed as a
spread (in the form of a percentage or a number of basis points (plus or minus))
with respect to the Reference Rate, obtained by the Calculation Agent on the
third Business Day prior to the Interim Period Remarketing Date from the bids
quoted from up to five Reference Money Market Dealers on such date for the full
aggregate principal amount of the MVPs at a dollar price equal to par, but
assuming (i) that the purchase date is the Interim Period Remarketing Date, with
settlement on such date without accrued interest, (ii) that the maturity date is
the day that is 26 weeks from the Interim Period Remarketing Date, (iii) that
the MVPs are callable by the Call Holder on a weekly basis after the Interim
Period Remarketing Date, (iv) that the MVPs will be repurchased by the Company
at par on the day that is 26 weeks from the Interim Period Remarketing Date if
not previously called by the Call Holder, and (v) a stated annual interest rate,
payable on the Additional Remarketing Date, equal to the Reference Rate plus the
spread bid by the applicable Reference Money Market Dealer.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions in The City of New York, Houston, Texas or
Chicago, Illinois are authorized
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or obligated by law, regulation or executive order to close and, in the case of
the determination of the Reference Rate that is based upon deposits in U.S.
dollars in London, the City of London.
"Calculation Agent" shall mean FCCM, in its capacity as the calculation
agent under this Agreement, and its successors and assigns.
"Call Holder" shall mean the Bank, in its capacity as the call holder
under this Agreement, and its successors and assigns.
"Call Price" shall have the meaning assigned to it in Section 12
hereof.
"Call Price Determination Date" shall have the meaning assigned to it
in Section 12 hereof.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Company" shall mean Xxxxxxxx-Xxxxxx Industries, Inc. and its
successors under this Agreement.
"Comparable Treasury Issues" shall mean the United States Treasury
security selected by the Calculation Agent as having an actual or interpolated
maturity on the Determination Date comparable to the remaining term of the MVPs.
"Comparable Treasury Price" shall mean, (a) the offer price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) on
the third Business Day prior to the Remarketing Date, as set forth on Telerate
Page 500 (as defined below), adjusted to reflect settlement on the Remarketing
Date if prices quoted on Telerate Page 500 are for settlement on any date other
than the Remarketing Date, or (b) if such page (or any successor page) is not
displayed or does not contain such offer price on such Business Day, (i) the
average of five Reference Treasury Dealer Quotations (as defined below) for such
Remarketing Date, excluding the highest and lowest of such Reference Treasury
Dealer Quotations (unless there is more than one highest or lowest quotation, in
which case only one such highest and/or lowest quotation shall be excluded), or
(ii) if the Calculation Agent 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
Bridge Telerate, Inc. (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 Bridge Telerate, Inc. The Calculation Agent shall have the
discretion to select the time at which the Comparable Treasury Price is
determined on the third Business Day prior to the Remarketing Date.
"Determination Date" shall mean the third Business Day preceding the
Remarketing Date (if such date is not the Interim Period Remarketing Date) or
the Additional Remarketing Date (in the event of an Interim Period), subject to
Section 12(c) hereof.
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"Dollar Price" shall mean, with respect to the MVPs, the present value,
as of the Remarketing Date, of the Remaining Scheduled Payments 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, except that in the case of the
Additional Remarketing Date, the Dollar Price will be the Adjusted Dollar Price.
"DTC" shall mean The Depository Trust Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Act Documents" shall have the meaning assigned to it in
Section 2 hereof.
"Exchange Act Regulations" shall mean the rules and regulations
promulgated under the Exchange Act.
"FCCM" shall mean First Chicago Capital Markets, Inc.
"Interest Determination Date" shall have the meaning assigned to it in
Section 5 hereof.
"Interim Period" shall mean the period, if any, from and including the
Remarketing Date to but excluding the Additional Remarketing Date.
"Interim Period Interest Rate" shall have the meaning assigned to it in
Section 5 hereof.
"Interim Period Remarketing Date" shall have the meaning assigned to it
in Section 4 hereof.
"Material Adverse Effect" shall have the meaning assigned to it in
Section 2 hereof.
"Maturity Date" shall mean January 18, 2002 or the later date
determined in accordance with Section 4 hereof.
"MVPs" shall mean the 6.08% Market Value Put securities of the Company.
"Notification Date" shall have the meaning assigned to it in Section 4
hereof.
"Optional Redemption Price" shall mean the sum of (i) the greater of
(a) 100% of the principal amount of the MVPs and (b) the Dollar Price (which if
such remarketing date is the Additional Remarketing Date, will equal the
Adjusted Dollar Price), plus (ii) in the case of either (a) or (b), accrued and
unpaid interest on the principal amount being redeemed to the date of payment in
respect of such redemption.
"Prospectus" shall have the meaning assigned to it in Section 3 hereof.
"Reference Corporate Dealers" shall mean each of FCCM, its successors
and four other leading dealers of publicly traded debt securities of the Company
selected by the Call Holder.
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The "Reference Rate" shall mean, with respect to the Interim Period,
one of the following reference rates selected by the Company and notified to the
Calculation Agent no later than four Business Days prior to the Interim Period
Remarketing Date: (i) the per annum rate for deposits in U.S. dollars for a
period of one week shown on Telerate page 3750 (or any successor page) at 11:00
a.m., London time, on the applicable Interest Determination Date, (ii) the per
annum rate equal to the average of the federal funds rates shown on Telerate
page 5 (or any successor page) as of 11:00 a.m., New York City time, on the
applicable Interest Determination Date and each of the four Business Days prior
to such Interest Determination Date, or (iii) the one-week "AA" non-financial
commercial paper rate shown on the Internet world wide web page of the Board of
Governors of the Federal Reserve System at xxx.xxx.xxx.xxx.xx/xxxxxxxx/XX/ (or
any successor page) as of 11:00 a.m., New York City time, on the applicable
Interest Determination Date. If the reference rate on the applicable designated
page (or successor page) is not published on the specified page by the specified
time on the applicable date or dates, then the reference rate determined as of
the applicable Interest Determination Date shall be the reference rate in effect
on such Interest Determination Date.
"Reference Money Market Dealers" shall mean each of FCCM, Chase
Securities Inc., NationsBanc Xxxxxxxxxx Securities LLC, Xxxxxxx, Sachs & Co. and
Xxxxxx Xxxxxxx & Co. Incorporated and their respective successors; provided,
however, that if any of the foregoing or its affiliates shall cease to be a
leading dealer of publicly traded debt securities of the Company and a leading
dealer in money market instruments (a "Primary Money Market Dealer"), the
Calculation Agent shall substitute therefor another Primary Money Market Dealer.
"Reference Treasury Dealer" shall mean each of FCCM, Chase Securities
Inc., NationsBanc Xxxxxxxxxx Securities LLC, Xxxxxxx, Sachs & Co. and Xxxxxx
Xxxxxxx & Co. Incorporated 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 (a "Primary Treasury Dealer"), the Calculation
Agent shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" shall mean, with respect to
each Reference Treasury Dealer, the offer price for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) for
settlement on the Remarketing Date quoted in writing to the Calculation Agent by
such Reference Treasury Dealer by 3:30 p.m. on the third Business Day prior to
the Remarketing Date.
"Registration Statement" shall have the meaning assigned to it in
Section 3 hereof.
"Remaining Scheduled Payments" shall mean, with respect to the MVPs,
the remaining scheduled payments of the principal thereof and interest thereon,
calculated at the Base Rate only and assuming (i) a maturity date equal to
January 18, 2002, and (ii) that the Company did not elect the Remarketing Date
to be the Interim Period Remarketing Date.
"Remarketing Date" shall mean January 18, 2000, which such date shall
be an Interest Payment Date.
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"Remarketing Materials" shall have the meaning assigned to it in
Section 3 hereof.
"Representation Date" shall have the meaning assigned to it in Section
2 hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securities Act Regulations" shall mean the rules and regulations
promulgated under the Securities Act.
"Senior Indenture" shall mean the Restated Indenture dated as of
September 1, 1991 between the Company and the Trustee, as amended, modified or
supplemented from time to time.
"Treasury Rate" shall mean the annual rate equal to the semi-annual
equivalent yield to maturity or interpolated (on a 30/360 day count basis) yield
to maturity on the Determination Date of the Comparable Treasury Issue (as
defined above) for value on the Remarketing Date, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price (as defined above).
"Trustee" shall mean Chase Bank of Texas, National Association
(formerly known as Texas Commerce Bank National Association as successor trustee
to First City, Texas-Houston, National Association, which was formerly First
City National Bank of Houston), and its successors as trustees under the Senior
Indenture.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended.
"Underwriting Agreement" shall mean the underwriting agreement, dated
January 12, 1999, between the Company and FCCM, Chase Securities Inc. and
NationsBanc Xxxxxxxxxx Securities LLC pursuant to which the MVPs have been sold
and delivered initially.
Section 2. Representations and Warranties. (a) The Company represents
and warrants to the Call Holder as of the date hereof, the Notification Date,
the date, if any, on which the Remarketing Date is designated the Interim Period
Remarketing Date, the Determination Date, the Remarketing Date and, if
applicable, the Additional Remarketing Date (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 Exchange
Act and the Exchange 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 "Exchange Act Documents", with
respect to such Representation Date), (ii) each Exchange Act Document complies
in all material respects with the requirements of the Exchange Act and Exchange
Act Regulations, and each Exchange 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 will not, as of
their
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date or the Remarketing Date, 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 Securities Act
with respect to the MVPs, is required for the consummation by the Company of the
transactions contemplated by this Agreement or in connection with the
remarketing of MVPs pursuant hereto, except such as have been or shall have been
obtained or rendered, as the case may be.
(b) The Company further represents and warrants to the Call Holder as
of each Representation Date as follows:
(i) This Agreement has been duly authorized, executed
and delivered by the Company and, assuming due authorization, execution
and delivery thereof by each of the Call Holder and the Calculation
Agent, constitutes a legal, valid and binding agreement of the Company,
enforceable in accordance with its terms, except (A) as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other laws
affecting creditors' rights generally, (B) that the remedy of specific
performance and injunctive and other forms of equitable relief are
subject to certain equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought, and (C) as
such enforceability may be subject to limitations on rights to
indemnity or contribution or both by Federal or state securities laws
or the public policies underlying such laws.
(ii) The Senior Indenture has been duly authorized,
executed and delivered by the Company and duly qualified under the
Trust Indenture Act, and, assuming it has been duly executed and
delivered by the Trustee, constitutes a valid and binding agreement of
the Company, enforceable against the Company 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 thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(iii) The MVPs have been duly authorized and executed
by the Company and authenticated, issued and delivered in the manner
provided for in the Senior Indenture and delivered against payment of
the purchase price therefor as provided in the Underwriting Agreement,
and constitute valid and binding obligations of the Company,
enforceable against the Company 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
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considered in a proceeding in equity or at law), and are in the form
contemplated by, and entitled to the benefits of, the Senior 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 of its obligations hereunder, in
connection with the remarketing of the MVPs hereunder or the
consummation of the transactions contemplated by this Agreement or for
the due execution, delivery or performance of the Senior Indenture by
the Company, except such as have been already obtained or shall have
been obtained prior to such remarketing.
(v) The MVPs are rated A- by Standard & Poor's
Ratings Services, Baa1 by Xxxxx'x Investors Service, Inc. and A- Duff &
Xxxxxx Credit Rating Co. or such other rating as to which the Company
shall have most recently notified the Call Holder pursuant to Section
3(a) hereof.
(vi) The accountants who have certified or shall
certify the financial statements of the Company included in the
Company's most recent Annual Report on Form 10-K are independent
accountants, as required by the Securities Act and the Securities Act
Regulations.
(vii) The consolidated financial statements filed as
part of or incorporated by reference in the Remarketing Materials
present fairly the financial position, results of operations,
stockholders' equity and cash flow of the entities purported to be
shown thereby, as of the respective dates of, and for the respective
periods covered by, such financial statements, all in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved and comply and will comply as to form
in all material respects with the Securities Act, the Securities Act
Regulations, the Exchange Act and the Exchange Act Regulations. The
term "financial statements" includes the financial statements and the
accompanying notes and schedules.
(viii) There has not been any material adverse change
in the financial condition, results of operations, business or
properties of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect") from that on the latest dates as of which or
during the latest period for which such financial condition, results of
operations, business or properties is set forth in the Exchange Act
Documents.
(ix) The Company and each of its consolidated
subsidiaries have been duly incorporated, are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and
are in good standing as foreign corporations in each jurisdiction in
which their respective ownership of property or the conduct of their
respective businesses requires qualification (except where the failure
to be in good standing or to qualify would not have a Material Adverse
Effect). The Company has all requisite power and authority necessary to
enter
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into this Agreement and the Senior Indenture, and to carry out the
provisions and conditions hereof and thereof.
(x) 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
Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Exchange 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 the Company of its
obligations hereunder; the aggregate of all pending legal or
governmental proceedings to which 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 Exchange Act Documents,
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
(xi) Neither the Company nor any of its consolidated
subsidiaries is in violation of its corporate charter or by-laws or in
default under any agreement, indenture or instrument, the effect of
which violation or default would be material to the Company and its
consolidated subsidiaries taken as a whole.
(xii) The execution, delivery and performance by the
Company of this Agreement and compliance by the Company with the
provisions of the MVPs and the Senior Indenture will not conflict with,
result in the creation or imposition of any lien, security interest or
other encumbrance upon any of the assets of the Company or any of its
consolidated subsidiaries pursuant to the terms of, or constitute a
default under, any agreement, indenture or instrument to which the
Company is a party or by which it is bound where any such default would
be material to the Company and its consolidated subsidiaries taken as a
whole or result in a violation of the corporate charter or by-laws of
the Company or any of its consolidated subsidiaries or, to the best
knowledge of the Company, any law applicable to the Company or its
consolidated subsidiaries the penalties for violations of which would
be material singly or in the aggregate to the Company and its
consolidated subsidiaries taken as a whole.
(c) Any certificate signed by the Chairman of the Board or the
President or a Vice President and the chief financial officer of the Company and
delivered to the Call Holder or to counsel for the Call Holder in connection
with the remarketing of the MVPs shall be deemed a representation and warranty
by the Company to the Call Holder as to the matters covered thereby.
Section 3. Covenants of the Company. The Company covenants with the
Call Holder as follows:
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(a) The Company will provide prompt notice by telephone, confirmed in
writing (which may include facsimile or other electronic transmission), to the
Call Holder of (i) any notification or announcement by a "nationally recognized
statistical rating organization" (as defined by the Commission for purposes of
Rule 436(g)(2) under the Securities Act) with regard to the ratings of any
securities of the Company, including, without limitation, notification or
announcement of a downgrade in or withdrawal of the rating of any security of
the Company or notification or announcement of the placement of any rating of
any securities of 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 9(b)(i), (ii),
(iii)(A), (v), (vi) or (viii) of this Agreement.
(b) The Company will furnish to the Call Holder:
(i) if required as provided in paragraph (e) below
for purposes of the remarketing, a then currently effective
registration statement (or equivalent document) under the Securities
Act and a then current prospectus (or equivalent document) relating to
the MVPs to be used by the Call Holder for remarketing and resale of
the MVPs (such registration statement and any amendments thereto,
including any such prospectus relating to the MVPs constituting a part
thereof, and all documents incorporated therein by reference, as from
time to time amended or supplemented pursuant to the Exchange Act, the
Securities 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 Call Holder by
the Company for use in connection with the remarketing of the MVPs
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 Company pursuant to
Rule 424(b) of the Securities Act Regulations), the term "Prospectus"
shall refer to such revised prospectus from and after the time it is
first provided to the Call Holder for such use);
(ii) each Exchange Act Document filed within 12
months of the Remarketing Date, and, in the event of an Interim Period,
the Additional Remarketing Date;
(iii) in connection with the remarketing of MVPs,
such other information as the Call Holder may reasonably request from
time to time; and
(iv) each document publicly filed by the Company with
the Commission pursuant to the Securities Act or the Exchange Act (to
the extent not covered by (ii) above) or otherwise after the date
hereof.
The Company agrees to provide the Call Holder with as many copies of
the foregoing written materials and other Company approved information as the
Call Holder may reasonably request for use in connection with the remarketing of
MVPs, and consents to the use thereof for such purpose.
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(c) If, at any time during which either the Call Holder or the
Calculation Agent would be obligated to take any action under this Agreement,
any event or condition known to the Company relating to or affecting the
Company, any subsidiary thereof or the MVPs 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 Company shall promptly notify the Call Holder in writing of the
circumstances and details of such event or condition.
(d) So long as the MVPs are outstanding, the Company will file all
documents required to be filed with the Commission pursuant to the Exchange Act
within the time periods required by the Exchange Act and the Exchange Act
Regulations.
(e) The Company will comply with the Securities Act and the Securities
Act Regulations, the Exchange Act and the Exchange Act Regulations and the Trust
Indenture Act and the rules and regulations of the Commission thereunder so as
to permit the completion of the remarketing of the MVPs as contemplated in this
Agreement and in the prospectus relating to the initial issuance of the MVPs. In
furtherance of the foregoing, if it shall be necessary, in the opinion of
counsel for the Call Holder or for the Company to have a currently effective
Registration Statement and a current Prospectus in order to comply with the
requirements of the Securities Act or the Securities Act Regulations and the
Commission's interpretations of the Securities Act and the Securities Act
Regulations, or if at any time when a prospectus (or equivalent document) is
required by the Securities Act to be delivered in connection with sales of the
MVPs, any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Call Holder or for the Company, 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 Company, 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 Call Holder such number of copies
of such Registration Statement and Prospectus or such amendment,
supplement or other document as the Call Holder may reasonably request;
(iii) furnish to the Call Holder 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 Company
satisfactory to the Call Holder and a "comfort letter" from the
Company's independent accountants, in each case in form and substance
satisfactory to the Call Holder, of the same tenor as the officers'
certificate, opinion and comfort letter,
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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; and
(iv) provide to the Call Holder and any other
securities dealer participating in the remarketing of the MVPs the
opportunity to conduct an underwriter's due diligence investigation of
the Company in a scope customarily provided in connection with a public
offering of the Company's debt securities.
(f) The Company agrees that neither it nor any of its subsidiaries or
affiliates shall defease, purchase or otherwise acquire, or enter into any
agreement to defease, purchase or otherwise acquire, any of the MVPs prior to
the remarketing thereof by the Call Holder, other than pursuant to Section 4(f)
or 4(g) of this Agreement.
(g) Notwithstanding any provision to the contrary set forth in the
Senior Indenture, the Company shall (i) use its best efforts to maintain the
MVPs in book-entry form with DTC or any successor thereto and to appoint a
successor depositary to the extent necessary to maintain the MVPs in book-entry
form, and (ii) waive any discretionary right it otherwise has under the Senior
Indenture to cause the MVPs 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 shall make
representations and warranties and 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.
(i) In connection with the remarketing, the Company will endeavor to
qualify the MVPs for offer and sale under the securities laws of such
jurisdictions as the Call Holder may reasonably request, provided that the
Company shall not be required to register or qualify as a foreign corporation
nor, except as to matters relating to the remarketing of the MVPs, take any
action which would subject it to service of process generally in any
jurisdiction, or to the imposition of any taxes based on, or measured by, all or
any part of the income of the Company, in any jurisdiction where it is not at
such date so subject.
(j) During the five Business Day period ending on any remarketing date,
the Company will not, without the consent of the Call Holder, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or announce
the offering of, any debt securities or warrants (other than commercial paper in
the ordinary course of business during such five Business Day period in the case
of the Remarketing Date (if such date is not the Interim Period Remarketing
Date) or the Additional Remarketing Date (in the event of the Interim Period)).
Section 4. Appointment and Obligations of the Call Holder. (a) Unless
this Agreement is otherwise terminated in accordance with Section 12 hereof, in
accordance with the terms, but subject to the conditions, of this Agreement, the
Company hereby appoints the Bank, and the Bank hereby accepts such appointment,
as the exclusive Call Holder with respect to $250,000 aggregate principal amount
of MVPs and agrees, subject to the conditions set forth herein, to
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remarket the MVPs, subject further to repurchase or redemption of the MVPs in
accordance with clause (f) or (g), respectively, of this section.
(b) It is expressly understood and agreed by the parties hereto that
the obligations of the Call Holder and the Calculation Agent hereunder with
respect to the MVPs to be remarketed on the Remarketing Date and the Additional
Remarketing Date, if applicable, are conditioned on the Call Holder's election
on the Notification Date to purchase the MVPs for remarketing on the Remarketing
Date. It is further expressly understood and agreed by and between the parties
hereto that, if the Call Holder has elected to remarket the MVPs pursuant to
clause (c) below, the Call Holder shall not be obligated to remarket any MVPs 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 9 hereof shall not have been fully and completely met to the reasonable
satisfaction of the Call Holder, or (ii) any of the events set forth in clause
(b) of Section 9 hereof shall have occurred.
(c) On a Business Day not less than five Business Days prior to the
Remarketing Date, the Call Holder shall notify the Company and the Trustee as to
whether it elects to purchase the MVPs on the Remarketing Date (the
"Notification Date"). If, and only if, the Call Holder so elects, the MVPs shall
be subject to mandatory tender to the Call Holder, and the Call Holder shall be
obligated to purchase the MVPs at a price equal to 100% of the principal amount
thereof, for remarketing on the Remarketing Date and, in the event of an Interim
Period, on the Additional Remarketing Date thereafter, subject in each case to
the conditions described herein.
(d) Provided that the Call Holder gives notice of its intention to
purchase the MVPs in accordance with clause (c) of this section, not later than
4:00 p.m., New York City time, on the fourth Business Day prior to January 18,
2000, the Company, after consultation with the Call Holder, may notify the Call
Holder, the Trustee and DTC by telephone, confirmed in writing that it elects
January 18, 2000 to be the Interim Period Remarketing Date (the "Interim Period
Remarketing Date"). The Company will be eligible to make such notification if at
such time its senior unsecured debt is rated at least "Baa3" by Xxxxx'x
Investors Service, Inc. and "BBB-" by Standard & Poor's Ratings Services (or the
equivalent thereof by each such rating agency) at the time of such notification
or if the Call Holder waives this requirement in its sole discretion. If the
Company does not provide such notification, January 18, 2000 will be the only
remarketing ate and the Maturity Date will be January 18, 2002. If the Company
provides such notification, then (i) the Additional Remarketing Date will be one
of the 26 following one-week anniversary dates of January 18, 2000 (or if any
such day is not a Business Day, the next succeeding Business Day) designated by
the Company not later than the fifth Business Day prior to such one-week
anniversary date (the "Additional Remarketing Date") except that, if the Company
fails to so designate the Additional Remarketing Date, the Additional
Remarketing Date will be the date that is the 26th week anniversary of January
18, 2000 (or if such day is not a Business Day, the next following Business Day)
and (ii) the Maturity Date of the MVPs will be the date that is the two-year
anniversary of the Additional Remarketing Date (whether or not a Business Day).
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(e) In the event that the MVPs are remarketed as provided herein, the
Call Holder shall make, or cause the Trustee to make, payment to the DTC
Participant of each tendering Beneficial Owner of MVPs subject to remarketing,
by book entry through DTC by the deadline on the applicable remarketing date
then in effect under DTC's rules and regulations against delivery through DTC of
such Beneficial Owner's tendered MVPs, of 100% of the principal amount of the
tendered MVPs that have been purchased for remarketing by the Call Holder. The
Company shall make, or cause the Trustee to make, payment of interest to each
Beneficial Owner of MVPs due on the applicable remarketing date by book entry
through DTC by the close of business on such remarketing date.
(f) Subject to Section 12(c) of this Agreement, in the event that (i)
the Calculation Agent for any reason does not notify the Company of (A) the
Interest Rate to Maturity by 4:00 p.m., New York City time, on the Determination
Date or (B) in the event of the Interim Period, the Interim Period Interest Rate
which will initially be in effect, by 4:00 p.m. on the second Business Day prior
to January 18, 2000, or (ii) prior to any remarketing date, the Call Holder has
resigned and no successor has been appointed (A) on or before the Determination
Date or, (B) in the event of the Interim Period, the second Business Day prior
to January 18, 2000, or (iii) at any time after the Call Holder elects on the
Notification Date to remarket the MVPs any event as set forth in Section 9 or
Section 12 of this Agreement shall have occurred, or (iv) the Call Holder for
any reason does not elect to purchase the MVPs for remarketing on the
Remarketing Date, or (v) the Call Holder for any reason does not purchase all
tendered MVPs on any remarketing date, or (vi) a Reference Corporate Dealer
shall fail to purchase all of the MVPs from the Call Holder on the Remarketing
Date (if such date is not the Interim Period Remarketing Date) or the Additional
Remarketing Date (in the event of the Interim Period), or (vii) in the event of
the Interim Period, a Reference Money Market Dealer shall fail to purchase all
of the MVPs on the Interim Period Remarketing Date, then the Company shall
repurchase the MVPs as a whole on the remarketing date relating to such event
(which, in the case of the event described in clause (iii) that occurs during
the Interim Period shall be the Additional Remarketing Date) at a price equal to
100% of the principal amount of the MVPs plus all accrued and unpaid interest,
if any, on the MVPs to such remarketing date. In any such case, payment will be
made by the Company through the Trustee to the DTC Participant of each tendering
Beneficial Owner of MVPs, by book-entry through DTC by the close of business on
the applicable remarketing date against delivery through DTC of such Beneficial
Owner's tendered MVPs.
(g) If the Call Holder elects to remarket the MVPs as provided in
clause (c) above, then not later than the fourth Business Day immediately
preceding the Remarketing Date or the Additional Remarketing Date, if any, the
Company may notify the Call Holder and the Trustee if the Company irrevocably
elects to exercise its right to redeem the MVPs, in whole but not in part, from
the Call Holder on the remarketing date immediately following such notification
at the Optional Redemption Price. If the Company elects to redeem the MVPs, it
shall pay the Optional Redemption Price therefor in same-day funds on such
remarketing date by wire transfer to an account designated by the Call Holder.
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(h) On the Determination Date, the Call Holder shall enter into a
binding contract to sell the MVPs to the Reference Corporate Dealer that
provided the lowest bid for settlement on the Remarketing Date (if such date is
not the Interim Period Remarketing Date) or the Additional Remarketing Date (in
the event of an Interim Period). In addition, on the third business day
preceding the Interim Period Remarketing Date, the Call Holder shall enter into
a binding contract to sell the MVPs to the Reference Money Market Dealer that
provided the lowest bid for settlement on the Interim Period Remarketing Date.
In either case, however, if FCCM does not provide the lowest of such bids, FCCM
may match the lowest of such bids and, thereupon, the Call Holder shall enter
into a binding contract to sell the MVPs to FCCM. Likewise, in either case, in
the event that more than one equal bid is received, the Call Holder shall select
the purchasing Reference Corporate Dealer or Reference Money Market Dealer, as
the case may be, at its discretion. The winning bidder will bear all of its own
expenses in connection with the remarketing. In the event that such Reference
Corporate Dealer or Reference Money Market Dealer fails to purchase the MVPs on
the applicable remarketing date for any reason, all of the obligations of the
Call Holder hereunder, including any obligation to purchase and remarket the
MVPs on such remarketing date, shall be terminated.
(i) The Call Holder may, without the consent of the Holders and
Beneficial Owners, modify the tender and settlement procedures set forth in the
Senior Indenture in order to facilitate the tender and settlement process; and
if requested by the Call Holder, the Company shall cooperate with the Call
Holder to effect such modification and enforce, for the benefit of the Call
Holder, compliance by the Holders and Beneficial Owners of the MVPs with the
terms of the MVPs relating to the purchase rights of the Call Holder.
(j) The tender and settlement procedures described above, including
provisions for payment by purchasers of MVPs in the remarketing or for payment
to Beneficial Owners of tendered MVPs, may be modified to the extent required by
DTC or, if agreed to by the Call Holder in accordance with Section 9(b)(viii) of
this Agreement, to the extent required to facilitate the tender and remarketing
of MVPs in certificated form, if the book-entry system is no longer available
for the MVPs at the time of the remarketing.
Section 5. Appointment and Obligations of the Calculation Agent. (a)
Unless this Agreement is otherwise terminated in accordance with Section 12
hereof, in accordance with the terms, but subject to the conditions, of this
Agreement, the Company hereby appoints FCCM, and FCCM hereby accepts such
appointment, as the exclusive Calculation Agent with respect to the MVPs. All
determinations provided for below, other than the Applicable Spread, shall be
made in good faith by the Calculation Agent.
(b) Subject to the Call Holder's election to remarket the MVPs as
provided in clause (c) of Section 4 hereof and to the termination provisions
provided in Section 12(b) hereof, from and including the Remarketing Date (if
such date is not the Interim Period Remarketing Date) or the Additional
Remarketing Date (in the event of an Interim Period), the MVPs shall bear
interest at the Interest Rate to Maturity. During the Interim Period, if any,
the MVPs shall bear interest at the Interim Period Interest Rate.
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(i) The Interest Rate to Maturity shall be determined
by the Calculation Agent by 3:30 p.m., New York City time, on the
Determination Date to the nearest one hundred-thousandth (0.00001) of
one percent per annum by soliciting firm committed bids, expressed as a
spread over the Base Rate, to purchase all outstanding MVPs at the
Dollar Price, and by selecting the lowest such firm committed bid
(regardless of whether each of the Reference Corporate Dealers actually
submits bids). The Interest Rate to Maturity will be equal to the sum
of the Base Rate plus the Applicable Spread. The Interest Rate to
Maturity announced by the Calculation Agent, absent manifest error,
shall be binding and conclusive upon the Beneficial Owners and Holders
of the MVPs, the Call Holder, the Company and the Trustee.
(ii) The interest rate for the Interim Period, if
any, will be reset on each Interest Reset Date during the Interim
Period and will be equal to the Reference Rate in respect of the
applicable Interest Reset Date plus the Basic Spread, in each case as
calculated by the Calculation Agent (the "Interim Period Interest
Rate"). The Wednesday of each week during the Interim Period will be an
"Interest Reset Date." The "Interest Determination Date" applicable to
an Interest Reset Date will be the second Business Day preceding such
Interest Reset Date. The interest rate in effect from and including the
Interim Period Remarketing Date (which is the first day of the Interim
Period) to but excluding the first Interest Reset Date during such
Interim Period will be determined as if the Interim Period Remarketing
Date were an Interest Reset Date and the Interest Determination Date
for such Interest Reset Date were the second Business Day prior to the
Interim Period Remarketing Date. The Interim Period Interest Rate and
the amount of interest payable on the Additional Remarketing Date shall
each be determined by the Calculation Agent and, absent manifest error,
shall be binding and conclusive upon the Beneficial Owners and Holders
of the MVPs, the Call Holder, the Company and the Trustee.
(c) Subject to the Call Holder's election to remarket the MVPs as
provided in Section 4(c), the Calculation Agent shall notify 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 MVPs effective from and
including the Remarketing Date (if such date has not been designated as the
Interim Period Remarketing Date) or Additional Remarketing Date (in the event of
an Interim Period). In the event of an Interim Period, the Calculation Agent
shall provide the Company, the Trustee and DTC notice in accordance with the
preceding sentence, on the second Business Day prior to the Interim Period
Remarketing Date of the Interim Period Interest Rate which will initially be in
effect.
(d) It is expressly understood and agreed by the parties hereto that
the obligations of the Calculation Agent hereunder with respect to the MVPs to
be remarketed are conditioned on the Call Holder's election on the Notification
Date to purchase the MVPs for remarketing. It is further expressly understood
and agreed by and between the parties hereto that, if the Call Holder has
elected to remarket the MVPs pursuant to clause (c) of Section 4 hereof, the
Calculation
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Agent shall not be obligated to perform any of the duties set forth herein at
any time after the Notification Date that (i) any of the conditions set forth in
clause (a) of Section 9 hereof shall not have been fully and completely met to
the reasonable satisfaction of the Call Holder, or (ii) any of the events set
forth in clause (b) of Section 9 hereof shall have occurred.
Section 6. Fees and Expenses. Subject to Section 12 of this Agreement,
for its services in performing its duties set forth herein, each of the Call
Holder and the Calculation Agent will not receive any fees or reimbursement of
expenses from the Company.
Section 7. Resignation of the Call Holder and Calculation Agent. Each
of the Call Holder and the Calculation Agent 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 Company and the
Trustee of such resignation, provided that no such resignation shall occur under
this sentence after the Notification Date. Each of the Call Holder and the
Calculation Agent 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 12(b) hereof. The
Company shall have the right, but not the obligation, to appoint a successor
Call Holder; provided, however, that the Call Holder may appoint a successor
Calculation Agent in the event of the resignation of the Calculation Agent in
the absence of a concurrent resignation of the Call Holder.
Section 8. Dealing in the MVPs; Purchase of MVPs by the Company. (a)
The Bank, or FCCM in their individual or any other capacity, may, to the extent
permitted by law, buy, sell, hold and deal in any of the MVPs. The Bank, as
Holder or Beneficial Owner of the MVPs, 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 MVPs may be entitled to exercise or take pursuant to the
Senior Indenture with like effect as if it did not act in any capacity
hereunder. The Call Holder and the Calculation Agent, in their respective
capacities as either principal or agent, may also engage in or have an interest
in any financial or other transaction with the Company as freely as if they did
not act in any capacity hereunder.
(b) The Company or its affiliates may purchase MVPs in the remarketing
on the Remarketing Date (if such date is not the Interim Period Remarketing
Date) or the Additional Remarketing Date (in the event of the Interim Period),
provided that the Interest Rate to Maturity established with respect to MVPs is
not different from the interest rate that would have been established if the
Company or its affiliates had not purchased such MVPs. In accordance with
Section 3(f) hereof, under no circumstances may the Company purchase MVPs in the
remarketing on the Interim Period Remarketing Date.
Section 9. Conditions to Call Holder's Obligations. The obligations of
the Call Holder 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 of its 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 at any
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time since the date hereof (provided, that with respect to termination of the
Call Holder's obligations hereunder after the Call Holder elects on the
Notification Date to remarket the MVPs due to events that occur or arise prior
to the Call Holder's election on the Notification Date to remarket the MVPs,
only to the extent that, in the reasonable judgment of the Call Holder, the
effect thereof is to make it illegal or commercially impractical for the Call
Holder to remarket the MVPs on the applicable remarketing date):
(i) the rating of any securities of 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 Call
Holder, the Senior Indenture (including the MVPs) 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 Call Holder materially changes the nature of the MVPs
or the remarketing procedures (it being understood that,
notwithstanding the provisions of this clause (ii), the Company shall
not be prohibited from amending the Senior Indenture);
(iii) (A) trading in any securities of the Company
shall have been suspended or materially limited by the Commission or
the New York Stock Exchange, or (B) 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 (C)
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 (D)
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 Call
Holder, impracticable to remarket the MVPs or to enforce contracts for
the sale of the MVPs;
(v) an Event of Default (as defined in the Senior
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 MVPs shall have occurred and be continuing;
(vi) a material adverse change, or any development
involving a prospective material adverse change, in the financial
condition, results of operations, business or properties of the Company
and its subsidiaries taken as a whole whether or not arising in the
ordinary course of business, shall have occurred which has a material
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adverse effect on the investment quality of the MVPs or which, in the
reasonable judgment of the Call Holder, has had or may have materially
adverse consequences for the Company or which makes it impractical or
inadvisable, in the reasonable judgment of the Call Holder, to proceed
with the remarketing or the delivery of the MVPs;
(vii) if the Prospectus is required under the
Securities Act to be delivered in connection with any remarketing of
the MVPs, the Company shall fail to furnish to the Call Holder on the
Remarketing Date and, in the event of the Interim Period, on the
Additional 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 Call Holder may
reasonably require for the purpose of enabling such counsel to pass
upon the sale of MVPs 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;
(viii) the MVPs are not maintained in book-entry form
with DTC or any successor thereto; provided, that the Call Holder,
subject to receipt of an opinion of counsel for the Company reasonably
satisfactory to the Call Holder, shall waive the foregoing condition if
in the Call Holder's reasonable judgment (x) the Senior Indenture and
the MVPs can be amended, and they are amended, so as to permit the
remarketing of the MVPs in certificated form and (y) it is practical to
remarket the MVPs with the same effect and on the same terms as
otherwise contemplated herein;
(ix) the Treasury Rate used to determine the Dollar
Price on the third Business Day prior to the Remarketing Date exceeds
the Base Rate; or
(x) the Calculation Agent shall not have received by
the required time on the Remarketing Date or the Additional Remarketing
Date, if applicable, any firm committed bids to purchase all of the
MVPs; or
(xi) a Reference Corporate Dealer shall fail to
purchase the MVPs from the Call Holder on the Remarketing Date or the
Additional Remarketing Date (in the event of the Interim Period);
and the Call Holder shall have received on the Remarketing Date and the
Additional Remarketing Date (in the event of an Interim Period) a certificate of
the Chairman of the Board or the President or a Vice President and the chief
financial officer of the Company, dated as of the applicable remarketing date to
the effect that (i) the representations and warranties in this Agreement are
true and correct with the same force and effect as though expressly made at and
as of the applicable remarketing date, (ii) the Company 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 applicable remarketing date, and
(iii) none of the events specified in the preceding clauses (b)(i) through
(viii) has occurred.
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(c) In furtherance of the foregoing, the effectiveness of the Call
Holder's election on the Notification Date to remarket the MVPs shall be subject
to the condition that the Call Holder shall have received a certificate of the
Chairman of the Board or the President or a Vice President and the chief
financial officer of the Company, dated as of the Notification Date, to the
effect that (i) the Company has, prior to the Call Holder's election on the
Notification Date to remarket the MVPs, provided the Call Holder 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 at and as
of the Notification Date and (iii) the Company 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 Company to the Call Holder as soon as practicable
following notification by the Call Holder to the Company on the Notification
Date of its election to remarket the MVPs and in any event prior to the third
Business Day prior to the Remarketing Date.
In the event of the failure of any of the foregoing conditions, the
Call Holder may terminate its obligations under this Agreement or redetermine
the Interest Rate to Maturity as provided in Section 12 hereof.
Section 10. Indemnification. (a) The Company shall indemnify and hold
harmless the Call Holder and its officers, directors and employees and each
person, if any, who controls the Call Holder within the meaning of Section 20 of
the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject, as incurred,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon, (i) the failure to have an effective
registration statement under the Securities Act relating to the MVPs, if
required, or the failure to satisfy the prospectus delivery requirements of the
Securities Act because the Company failed to notify the Call Holder of such
delivery requirement or failed to provide the Call Holder with an updated
Prospectus for delivery, or (ii) any untrue statement or alleged untrue
statement of a material fact contained in any of the Remarketing Materials
(including any incorporated documents), or (iii) the omission or alleged
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
(iv) any violation by the Company of, or any failure by the Company to perform
any of its obligations under, this Agreement, or (v) the acts or omissions of
the Calculation Agent in connection with its duties and obligations hereunder
except that are finally judicially determined to be due to its gross negligence
or willful misconduct, and reimburse each such indemnified party upon demand for
any legal or other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, damage, liability or action and
shall, if requested by any such indemnified party, assume the defense of such
indemnified party in any action based upon allegations of any such loss, claim,
damage or liability, with counsel satisfactory to such indemnified party;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Call Holder
expressly for use in connection with the preparation of the Remarketing
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Materials. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) The Call Holder shall indemnify and hold harmless the Company, each
of its directors, each of its officers who has signed the Registration Statement
and each person, if any, who controls the Company within the meaning of Section
20 of the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject,
as incurred, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Remarketing
Materials, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that the same
was made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Call Holder specifically for use
in connection with the preparation of the Remarketing Materials, and reimburse
each such indemnified party upon demand for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any such
loss, claim, damage, liability or action. This indemnity agreement will be in
addition to any liability which the Call Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
10 of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 10, notify the indemnifying party in writing of the commencement of
such action in sufficient time to permit the indemnifying party to assume the
defense thereof, but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 10. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will (i) if it is so required under
subparagraph (a) of this Paragraph, assume the defense of such action with
counsel satisfactory to such indemnified party, or (ii) if not required to
assume the defense under such paragraph (a), will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party, and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses (in which case the indemnifying party shall not have the right to
direct the defense of such action on behalf of the indemnified party or
parties), but the indemnifying party shall not, in connection with any one such
action, or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses with respect to any period during the pendency
of such action or similar or related actions of more than one separate firm of
attorneys for all indemnified parties so named, designated in writing by the
Call Holder if the indemnifying party is the Company or by the
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Company if the indemnifying party is the Call Holder. Upon the assumption by the
indemnifying party of the defense of such action pursuant to clause (i) or
clause (ii) of this subparagraph (c), and approval by the indemnified party of
counsel, the indemnifying party shall not be liable to such indemnified party
under this Section 10 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof (other than
reasonable costs of investigation) unless (x) the indemnified party shall have
employed separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence, (y) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time, or (z) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. The indemnifying party shall not
be liable for any settlement of any action or claim effected without its consent
which consent shall not be unreasonably withheld.
(d) The respective indemnity and contribution agreements of the Company
and the Call Holder contained in this Section 10 and Section 11, and the
representations and warranties of the Company contained in Section 2 hereof,
shall remain operative and in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation made by or on
behalf of the Call Holder or the Company or any director or officer or any
controlling person referred to in this Section 10, and such agreement,
representations and warranties, as well as the other covenants contained herein,
shall survive any remarketing of the MVPs and any successor of the Call Holder
or of the Company or any legal representative of any such director or officer or
of any such controlling person, as the case may be, shall be entitled to the
benefits of the respective indemnity and contribution agreements.
Section 11. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
subparagraph (a) or (b) of Section 10 is for any reason held to be unavailable
from an indemnifying party, then the Company and the Call Holder shall
contribute to the aggregate losses, claims, damages and liabilities (including
any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted) to which the Company and the Call Holder may be subject in such
proportion so that the Call Holder is responsible for that portion represented
by the percentage that the aggregate positive difference, if any, between the
price paid by the Call Holder for the MVPs (the "Aggregate Positive Difference")
tendered on the Remarketing Date or the Additional Remarketing Date, as the case
may be, and the price at which MVPs bearing the Interest Rate to Maturity are
sold by the Call Holder bears to the aggregate principal amount of the MVPs, and
the Company is responsible for the balance; provided, however, that (y) in no
case shall the Call Holder be responsible for any amount in excess of the
Aggregate Positive Difference and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 11, each person, if
any, who controls the Call Holder within the meaning Section 20 of the Exchange
Act shall have the same rights to contribution as the Call Holder, and each
person, if any, who controls the Company within the meaning of Section 20 of the
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Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (y) and (z) of this
Section 11. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party or
parties under this Section 11, notify such party or parties from whom
contribution may be sought, but the omission so to notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
Section 11.
Section 12. Termination of Remarketing and Interest Calculation
Agreement or Redetermination of Interest Rate to Maturity. (a) This Agreement
shall terminate as to the Call Holder on the effective date of the resignation
of the Call Holder pursuant to Section 7 hereof or if the Call Holder does not
elect to remarket the MVPs pursuant to Section 4(c) hereof, or upon the
notification of the Call Holder by the Company of its election to redeem the
MVPs pursuant to Section 4(g) hereof.
(b) In addition, the Call Holder may terminate all of its obligations
under this Agreement immediately by notifying the Company and the Trustee of its
election to do so, at any time on or before the Remarketing Date (if such date
is not the Interim Period Remarketing Date) or the Additional Remarketing Date
(in the event of the Interim Period), in the event that: (i) any of the
conditions referred to or set forth in Section 9 (a) hereof have not been met or
satisfied in full, (ii) any of the events set forth in Section 9(b) hereof shall
have occurred, or (iii) the Call Holder determines, in its discretion, after
consultation with the Company, that it shall not have received all of the
information, whether or not specifically referenced herein, reasonably necessary
to remarket the MVPs under this Agreement.
(c) Notwithstanding any provision herein to the contrary, in lieu of
terminating this Agreement pursuant to Section 12(b) above, upon the occurrence
of any of the events set forth therein, the Call Holder, 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 (if such date is not
the Interim Period Remarketing Date) or the Additional Remarketing Date (in the
event of the Interim Period), may elect to purchase the MVPs for remarketing and
cause the Calculation Agent to determine a new Interest Rate to Maturity in the
manner provided in Section 5(b) 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 of the Interest Rate to Maturity. The Calculation Agent shall
notify the Company, 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 MVPs. Thereupon, such new Interest Rate to Maturity
shall supersede and replace any Interest Rate to Maturity previously determined
by the Calculation Agent and, absent manifest error, shall be
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binding and conclusive upon the Beneficial Owners and Holders of the MVPs on or
after the Remarketing Date or Additional Remarketing Date, as the case may be,
the Company and the Trustee; provided, however, that the Call Holder, by
redetermining the Interest Rate to Maturity upon the occurrence of any event set
forth in Section 12(b) hereof 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 12(b)
hereof.
(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 12(b) of this Agreement,
the Company shall reimburse the Call Holder for all of its out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Call Holder in connection with the remarketing, and except further as set forth
in Section 12(e) below. Sections 1, 10, 11, 12(d) and 12(e) hereof shall survive
such termination and remain in full force and effect.
(e) In the case of either (A) termination of this Agreement pursuant to
Section 12(b) hereof after the Call Holder's election on the Notification Date
to remarket the MVPs, or (B) the occurrence, prior to the Call Holder's election
on the Notification Date to remarket the MVPs, of any event set forth in Section
9(b)(ii), (v) or (viii) hereof, upon the request of the Call Holder, the
Company, in each case, shall immediately following the Call Price Determination
Date pay the Call Holder, in same-day funds by wire transfer to an account
designated by the Call Holder, the fair market value, calculated as set forth
below, of the Call Holder's embedded interest rate option implicit in the Call
Holder's right to purchase and remarket the MVPs pursuant to this Agreement (the
"Call Price"). Payment of the Call Price, in any case, shall be made by the
Company within five Business Days of the Call Holder's request pursuant to this
paragraph.
(i) In the case of termination of this Agreement pursuant to
Section 12(b) hereof on or after the Notification Date, the Call Price
shall be equal to the excess, if any, of (i) the Dollar Price
determined as provided in Section 5 (which, in the event of termination
after commencement of the Interim Period, shall be the Adjusted Dollar
Price) over (ii) the aggregate principal amount of the MVPs.
(ii) In the case of the occurrence, prior to the Call Holder's
election on the Notification Date to remarket the MVPs, of any event
set forth in Section 9(b)(ii) or (v) or (viii), the Call Price shall be
determined in the following manner: the Calculation Agent shall select
five reference market dealers reasonably acceptable to the Company. The
Calculation Agent shall request each reference market dealer to provide
a quotation, as of the same time and date, of the value of the Call
Price, determined on a commercially reasonable basis by reference,
among other factors, to the formulation described in the preceding
paragraph. The Call Price shall be equal to the average of the three
quotations remaining after disregarding the highest and lowest of such
quotations. If fewer than five quotations are obtained, the average of
the quotations shall be used.
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In the case of either (i) or (ii) above, the Call Holder shall
determine the applicable Call Price on the Business Day immediately following
the date of termination or notification of the occurrence, prior to the Call
Holder's election on the Notification Date to remarket the MVPs, of any event
set forth in Section 9(b)(ii), (v) or (viii) hereof, as the case may be, or as
soon as practicable thereafter (the "Call Price Determination Date"). The Call
Holder shall promptly notify the Company 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 Company.
Section 13. Call Holder's Performance; Duty of Care. The duties and
obligations of the Call Holder shall be determined solely by the express
provisions of this Agreement and the Senior Indenture. No implied covenants or
obligations of or against the Call Holder shall be read into this Agreement or
the Senior Indenture. In the absence of bad faith on the part of the Call
Holder, the Call Holder may conclusively rely upon any document furnished to it,
which purports to conform to the requirements of this Agreement and the Senior
Indenture, as to the truth of the statements expressed in any of such documents.
The Call Holder 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 Call Holder or the Calculation Agent shall incur no
liability to any Beneficial Owner or Holder of MVPs in their individual capacity
or otherwise for any action or failure to act in connection with the remarketing
or otherwise. The Calculation Agent shall incur no liability to the Company
except as a result of gross negligence or willful misconduct on its part.
Section 14. 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 15. 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 MVPs are outstanding or the completion of the remarketing of the MVPs.
Regardless of any termination of this Agreement pursuant to any of the
provisions hereof, the obligations of the Company pursuant to Sections 10 and 12
hereof shall remain operative and in full force and effect until fully
satisfied.
Section 16. Successors and Assigns. The rights and obligations of the
Company hereunder may not be assigned or delegated to any other person without
the prior written consent of each of the Call Holder and the Calculation Agent.
The rights and obligations of the Call Holder and the Calculation Agent
hereunder may be assigned or delegated to any affiliate thereof without the
consent of the Company, and to any other person only with the prior written
consent of the Company. This Agreement shall inure to the benefit of and be
binding upon the Company, the Call Holder and the Calculation Agent and their
respective successors and assigns, and will not confer any benefit upon any
other person, partnership, association or corporation
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other than persons, if any, controlling the Call Holder or the Calculation Agent
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, or any indemnified party to the extent provided in Section 10
hereof, or any person entitled to contribution to the extent provided in Section
11 hereof. The terms "successors" and "assigns" shall not include any purchaser
of any MVPs merely because of such purchase.
Section 17. 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 18. 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 19. 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.
Section 20. 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 Senior Indenture as in effect as of the
date of any such amendment.
Section 21. 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
transmitted, delivered or mailed, registered or certified mail, return receipt
requested and postage prepaid, addressed as follows:
(a) to the Company:
Xxxxxxxx-Xxxxxx Industries, Inc.
000 X. Xxxxxxxx
Xxxxxxx, XX 00000
Attention: Corporate Secretary
Facsimile No.: (000) 000-0000
(b) to the Bank:
The First National Bank of Chicago
One First Xxxxxxxx Xxxxx, Xxxxx 0000
00
00
Xxxxxxxxx: Xxxxx Xxxxxx
Facsimile No.: (000) 000-0000
(c) to FCCM:
First Chicago Capital Markets, Inc.
One First National Plaza, Suite 0595
Attention: Corporate Securities Structuring
Facsimile No.: (000) 000-0000
or to such other address as the Company, the Call Holder or the Calculation
Agent shall specify in writing.
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IN WITNESS WHEREOF, each of the Company, the Call Holder and the
Calculation Agent has caused this Remarketing and Interest Calculation Agreement
to be executed in its name and on its behalf by one of its duly authorized
officers as of the date first above written.
XXXXXXXX-XXXXXX INDUSTRIES, INC.
By /s/ Xxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxx X. Xxxx
Title: Treasurer
FIRST CHICAGO CAPITAL MARKETS, INC.
By /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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