, dated as of January 28, 1998 (the "Agreement"),
among Tyson Foods, Inc., a Delaware corporation (the "Company"), and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx" and, in
its capacity as the remarketing dealer hereunder, the "Remarketing
Dealer").
WHEREAS, the Company has issued $100,000,000 aggregate principal amount of
its 6.08% MandatOry Par Put Remarketed Securities[SM] Due February 1, 2010
(the "MOPPRS")(1), pursuant to an indenture, dated as of June 1, 1995 (the
"Indenture"), between the Company and The Chase Manhattan Bank, as trustee
(the "Trustee"); and
----------
(1) "Mandatory Par Put Remarketed Securities[SM]" and "MOPPRS[SM]" are
service marks owned by Xxxxxxx Xxxxx & Co., Inc.
WHEREAS, the MOPPRS are being sold initially pursuant to an underwriting
agreement, dated January 28, 1998 (the "Underwriting Agreement"), between
the Company and Xxxxxxx Xxxxx; and
WHEREAS, the Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 33-58177)
under the Securities Act of 1933, as amended (together with the rules and
regulations of the Commission thereunder (the "Securities Act")), in
connection with the offering of Debt Securities, including the MOPPRS,
which registration statement was declared effective by order of the
Commission on June 2, 1995, 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 (such registration statement and
any amendments thereto including any prospectus relating to the offering of
MOPPRS by the Company constituting a part thereof, and all documents
ncorporated therein by reference, as from time to time amended or
supplemented pursuant to the Securities Exchange Act of 1934, as amended
(together with the rules and regulations of the Commission thereunder (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 Remarketing Dealer
by the Company for use in connection with the remarketing of the MOPPRS
which differs from the Prospectus on file at the Commission at the time the
Registration Statement became effective (whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b)
of the Securities Act, the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Remarketing
Dealer for such use); and
WHEREAS, Xxxxxxx Xxxxx is prepared to act as the Remarketing Dealer with
respect to the remarketing of the MOPPRS on February 1, 2000 (the
"Remarketing Date") pursuant to the terms of, but subject to the conditions
set forth in, this Agreement;
NOW, THEREFORE, for and in consideration of the covenants herein made, and
subject to the conditions herein set forth, the parties hereto agree as
follows:
3
Section 1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Indenture
(including the form of the MOPPRS).
Section 2. Representations and Warranties. (a) The Company represents
and warrants to the Remarketing Dealer as of the date hereof, the
Notification Date (as defined below), the Determination Date (as defined
below), the Remarketing Date and each date, if any, thereafter, of delivery
of MOPPRS in the initial distribution of MOPPRS by the Remarketing Dealer
(each such date being hereinafter referred to as a "Representation Date"),
that:
(i) it has made all the filings with the Commission that it is required to
make under the Exchange Act (collectively, the "Exchange Act Documents"),
(ii) the applicable Remarketing Materials (as defined herein) will comply
as to form in all material respects with the Exchange Act and 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, and
(iii) the representations and warranties contained in the Underwriting
Agreement are true and correct with the same force and effect as though
expressly made at and as of the date hereof.
(b) The Company further represents and warrants to the Remarketing Dealer
as of each Representation Date as follows:
(i) The financial statements, and the related notes thereto, included or
incorporated by reference in the Remarketing Materials present fairly the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their operations
and the changes in their consolidated cash flows for the periods specified;
said financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis, and the
supporting schedules included or incorporated by reference in the
Remarketing Materials present fairly the information required to be stated
therein. The pro forma financial statements and the related notes thereto,
if any, included or incorporated by reference in the Remarketing Materials
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro
forma financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein.
(ii) Since the respective dates as of which information is given in the
Remarketing Materials, there has not been any material adverse change, or
any development known by the Company (after diligent inquiry) involving a
prospective material adverse change, in or affecting the business,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, otherwise than as set
forth, incorporated by reference or contemplated in the Remarketing
Materials; and except as set forth, incorporated by reference or
contemplated in the Remarketing Materials neither the Company nor any of
its subsidiaries has entered into any transaction or agreement (whether or
not in the ordinary course of business) material to the Company and its
subsidiaries taken as a whole. 4
(iii) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of its
ncorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Remarketing
Materials, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the failure
to be so qualified or in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole.
(iv) Each of the Company's subsidiaries that constitutes a "significant
subsidiary" within the meaning of Rule 1-02 of Regulation S-X of the
Commission (the "Material Subsidiaries") has been duly incorporated and is
validly existing as a corporation under the laws of its jurisdiction
of incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Remarketing
Materials, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
jurisdiction in which it owns or leases properties or conducts any business
so as to require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse effect on
the Company and its subsidiaries taken as a whole; and all the outstanding
shares of capital stock of each Material Subsidiary of the Company have
been duly authorized and validly issued, are fully-paid and non-assessable,
and (except in the case of foreign subsidiaries, for directors' qualifying
shares) are owned by the Company, directly or indirectly, free and clear of
all liens, encumbrances, security interests and claims.
(v) This Agreement has been duly authorized, executed and delivered by the
Company.
(vi) The MOPPRS have been duly authorized and executed by the Company and
authenticated, issued and delivered in the manner provided for in the
Indenture and delivered against payment of the purchase price therefor as
provided in the Underwriting Agreement and constitute valid and binding
obligations of the Company entitled to the benefits provided by the
indenture; the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act of 1939, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "Trust Indenture Act"), and
constitutes a valid and binding instrument of the Company.
(vii) Neither the Company nor any of its Material Subsidiaries is, or with
the giving of notice or lapse of time or both would be, in violation of or
in default under, its Certificate of Incorporation or By-Laws or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Material Subsidiaries is a
party or by which it or any of them or any of their respective properties
is bound, except for violations and defaults which individually and in the
aggregate are not material to the Company and its subsidiaries taken as a
whole or to the holders of the MOPPRS; the issue and sale of the MOPPRS and
the performance by the Company of all of its obligations under the MOPPRS,
this Agreement, the Underwriting Agreement and the Indenture and the
consummation of the transactions herein and therein contemplated (including
the issuance and sale of the MOPPRS and the use of the proceeds from the
sale of the MOPPRS as described in the Prospectus under the caption "Use of
5
Proceeds") will not conflict with or result in a breach of any of the terms
or provisions of, or constitute a default or Repayment Event (as defined
below) under, any indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which the Company or any of its
Material Subsidiaries is a party or by which the Company or any of its
Material Subsidiaries is bound or to which any of the property or assets of
the Company or any of its Material Subsidiaries is subject, nor will any
such action result in any violation of the provisions of the Certificate of
Incorporation or the By-Laws of the Company or any Material Subsidiaries or
any applicable law or statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company, its
Material Subsidiaries or any of their respective properties; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
issue, sale and remarketing of the MOPPRS or the consummation by the
Company of the transactions contemplated by this Agreement, the
Underwriting Agreement or the Indenture, except such consents, approvals,
authorizations, registrations or qualifications as have been obtained under
the Securities Act, the Trust Indenture Act and as may be required under
state securities or Blue Sky Laws in connection with the purchase and
distribution of the MOPPRS by the remarketing Dealer. As used herein, a
"Repayment Event" means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any person acting
on such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any
Material Subsidiary.
(viii) Other than as set forth, incorporated by reference or contemplated
in the Remarketing Materials, there are no legal or governmental
proceedings pending or, to the knowledge of the Company, threatened to
which the Company or any of its Material Subsidiaries is or may be a party
or to which any property of the Company or any of its Material Subsidiaries
is or may be the subject which, if determined adversely to the Company,
could individually or in the aggregate reasonably be expected to have a
material adverse effect on the business, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries taken
as a whole and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others; and there are no contracts or other documents of a character
required to be filed as an exhibit to the Remarketing Materials or required
to be described in the Remarketing Materials which are not filed or
described as required.
(ix) Other than as set forth, incorporated by reference or contemplated in
the Remarketing Materials, each of the Company and its Material
Subsidiaries is in compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of human
health or the environment or imposing liability or standards of conduct
concerning any Hazardous Material (collectively, "Environmental Laws"),
except where such non-compliance with Environmental Laws could not, singly
or in the aggregate, reasonably be expected to have a material adverse
effect on the Company and its subsidiaries, taken as a whole. The term
"Hazardous Material" means (i) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, (ii) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act, as amended, (iii) any petroleum or petroleum
6
product, (iv) any polychlorinated biphenyl, and (v) any pollutant or
contaminant or hazardous, dangerous, or toxic chemical, material, waste or
substance regulated under or within themeaning of any other Environmental
Law.
(x) Each of the Company and its Material Subsidiaries owns or possesses
the right to use the patents, patent licenses, trademarks, service marks,
trade names, copyrights and know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) (collectively, the "Intellectual Property")
reasonably necessary to carry on the business conducted by each as
conducted on the date hereof, except to the extent that the failure to own
or possess the right to use such Intellectual Property could not, singly or
in the aggregate, reasonably be expected to have a material adverse effect
on the Company and its subsidiaries, taken as a whole, and, except as set
forth or incorporated by reference in the Remarketing Materials, neither
the Company nor any Material Subsidiary has received any notice of
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property, except for notices the content of which if
accurate could not, singly or in the aggregate, reasonably be expected to
have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(xi) Other than as set forth, incorporated by reference or contemplated in
the Remarketing Materials, no labor disputes exist with employees of the
Company or of its Material Subsidiaries that could, singly or in the
aggregate, reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(xii) Ernst & Young LLP, who have certified certain financial statements
of the Company and its subsidiaries, are independent public accountants as
required by the Securities Act.
(xiii) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended.
(xiv) Other than as set forth, incorporated by reference or contemplated
in the Remarketing Materials, the Company and each of its Material
Subsidiaries have all licenses, franchises, permits, authorizations,
approvals and orders of and from all governmental and regulatory officials
and bodies that are necessary to own or lease and operate their properties
and conduct their businesses as described in the Remarketing Materials and
that are material in relation to the business of the Company and its
subsidiaries taken as a whole.
(xv) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
(xvi) The MOPPRS are rated A3 by Xxxxx'x Investor Service, Inc. and A- by
Standard & Poor's Ratings Services, a division of the XxXxxx-Xxxx
Companies, Inc. or such other rating as to which the Company shall have
most recently notified the Remarketing Dealer pursuant to Section 3(a)
hereof.
7
(c) Additional Certifications. Any certificate signed by any director or
officer of the Company and delivered to the Remarketing Dealer or to
counsel for the Remarketing Dealer in connection with the remarketing of
the MOPPRS shall be deemed a representation and warranty by the Company to
the Remarketing Dealer as to the matters covered thereby.
Section 3. Covenants of the Company. The Company covenants with the
Remarketing Dealer as follows:
(a) The Company will provide prompt notice by telephone, confirmed in
writing (which may include facsimile or other electronic transmission), to
the Remarketing Dealer of (i) any notification or announcement by a
"nationally recognized statistical rating agency" (as defined by the
Commission for purposes of Rule 436(g)(2) under the 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, (ii) the occurrence at any time of any event
set forth in Sections 9(c)(i), (ii), (v) and (viii) of this Agreement or
(iii) the occurrence during the Remarketing Period (as defined below) of
any event set forth in Sections 9(c)(iii) and (vi) of this Agreement.
(b) The Company will furnish to the Remarketing Dealer:
(i) the Registration Statement and the Prospectus relating to the MOPPRS
(including in each case any amendment or supplement thereto and each
document incorporated therein by reference); and
(ii) each Exchange Act Document filed after the date hereof.
The Company agrees to provide the Remarketing Dealer with as many copies of
the foregoing written materials and other Company approved information as
the Remarketing Dealer may reasonably request for use in connection with
the remarketing of MOPPRS and consents to the use thereof for such purpose.
(c) If, at any time during the period commencing 15 days prior to the
Notification Date to the later of the Remarketing Date or such later date,
if any, as Remarketing Material may be delivered in connection with the
initial distribution of MOPPRS by the Remarketing Dealer (the "Remarketing
Period"), any event or condition known to the Company relating to or
affecting the Company, any subsidiary thereof or the MOPPRS shall occur
which could reasonably be expected to cause any of the reports, documents,
materials or information referred to in paragraph 3(b)(ii) 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 Remarketing
Dealer in writing of the circumstances and details of such event or
condition.
(d) So long as the MOPPRS 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.
8
(e) The Company will comply with the Securities Act, the Exchange Act and
the Trust Indenture Act so as to permit the completion of the remarketing
of the MOPPRS as contemplated in this Agreement and in the Prospectus. If
at any time when a prospectus is required by the Securities Act to be
delivered in connection with sales of the MOPPRS, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion
of counsel for the Remarketing Dealer or for the 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, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration
Statement or file a new registration statement or amend or supplement the
Prospectus or issue a new prospectus in order to comply with the
requirements of the Securities Act and the Commission's interpretations of
the Securities Act, the Company, at its expense, will promptly (i) prepare
and file with the Commission such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, or prepare and
file any such new registration statement and prospectus as may be necessary
for such purpose, (ii) furnish to the
Remarketing Dealer such number of copies of such amendment, supplement or
other document as the Remarketing Dealer may reasonably request and (iii)
furnish to the Remarketing Dealer an officers' certificate, an opinion,
including a statement as to the absence of material misstatements in or
omissions from the Registration Statement and Prospectus, as amended or
supplemented, of counsel for the Company satisfactory to the Remarketing
Dealer and a "comfort letter" from the Company's independent accountants,
in each case in form and substance reasonably satisfactory to the
Remarketing Dealer, of the same tenor as the officers' certificate, opinion
and comfort letter, respectively, delivered pursuant to the Underwriting
Agreement, but modified to relate to the Registration Statement and
Prospectus as amended or supplemented to the date thereof or such new
registration statement and prospectus.
(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 MOPPRS
prior to the remarketing thereof by the Remarketing Dealer, other than
pursuant to Section 4(g) or 4(h) of this Agreement.
(g) Notwithstanding any provision to the contrary set forth in the
Indenture, the Company shall (i) use its best efforts to maintain the
MOPPRS in book-entry form with The Depository Trust Company ("DTC") or any
successor thereto and to appoint a successor depositary to the extent
necessary to maintain the MOPPRS in book-entry form, and (ii) waive any
discretionary right it otherwise has under the Indenture to cause the
MOPPRS to be issued in certificated form.
(h) The Company will comply with each of the covenants set forth in the
Underwriting Agreement.
Section 4. Appointment and Obligations of the Remarketing Dealer. (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 Xxxxxxx Xxxxx, and Merrill
9
Xxxxx hereby accepts such appointment, as the exclusive Remarketing Dealer
with respect to $100,000,000 aggregate principal amount of MOPPRS, subject
further to repurchase of the MOPPRS in accordance with clause (g) of this
section or redemption of the MOPPRS in accordance with clause (h) of this
section.
(b) It is expressly understood and agreed by the parties hereto that the
obligations of the Remarketing Dealer hereunder with respect to the MOPPRS
to be remarketed on the Remarketing Date are conditioned on (i) the
issuance and delivery of such MOPPRS pursuant to the terms and conditions
of the Underwriting Agreement and (ii) the Remarketing Dealer's election on
the Notification Date to purchase the MOPPRS for remarketing on the
Remarketing Date. It is further expressly understood and agreed by and
between the parties hereto that, if the Remarketing Dealer has elected to
remarket the MOPPRS pursuant to clause (c) below, the Remarketing Dealer
shall not be obligated to set the Interest Rate to Maturity on any MOPPRS,
to remarket any MOPPRS or to perform any of the other duties set forth
herein at any time after the Notification Date if (i) any of the conditions
set forth in clause (a) or (b) of Section 9 hereof shall not have been
fully and completely met to the reasonable satisfaction of the Remarketing
Dealer, or (ii) any of the events set forth in clause (c) of Section 9
hereof shall have occurred.
(c) On a Business Day not later than five Business Days prior to the
Remarketing Date, the Remarketing Dealer will notify the Company and the
Trustee as to whether it elects to purchase the MOPPRS on the Remarketing
Date (the "Notification Date"). If, and only if, the Remarketing Dealer so
elects, the MOPPRS shall be subject to mandatory tender to the Remarketing
Dealer for remarketing on the Remarketing Date, subject to the conditions
described herein.
(d) Subject to the Remarketing Dealer's election to remarket the MOPPRS as
provided in clause (c) above, the Interest Rate to Maturity shall be
determined by the Remarketing Dealer by 3:30 p.m., New York City time, on
the third Business Day immediately preceding the Remarketing Date (the
"Determination Date") to the nearest one hundred-thousandth (0.00001) of
one percent per annum, and will be equal to the sum of 5.712% (the "Base
Rate") plus the Applicable Spread (as defined below), which will be based
on the Dollar Price (as defined below) of the MOPPRS.
The "Applicable Spread" will be the lowest bid indication, expressed as a
spread (in the form of a percentage or in basis points) above the Base
Rate, obtained by the Remarketing Dealer on the Determination Date from the
bids quoted by five Reference Corporate Dealers (as defined below) for the
full aggregate principal amount of the MOPPRS at the Dollar Price, but
assuming (i) an issue date equal to the Remarketing Date, with settlement
on such date without accrued interest, (ii) a maturity date that is the
Stated Maturity Date of the MOPPRS, and (iii) a stated annual interest rate
that is the Base Rate plus the spread bid by the applicable Reference
Corporate Dealer. If fewer than five Reference Corporate Dealers bid as
described above, then the Applicable Spread shall be the lowest of such bid
indications obtained as described above. The Interest Rate to Maturity
announced by the Remarketing Dealer, absent manifest error, shall be
binding and conclusive upon the Beneficial Owners and Holders of the
MOPPRS, the Company and the Trustee.
10
"Dollar Price" means, with respect to the MOPPRS, the present value, as of
the Remarketing Date, of the Remaining Scheduled Payments (as defined
below) discounted to the Remarketing Date, on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day months), at the Treasury Rate
(as defined below).
"Reference Corporate Dealers" means each of Chase Securities Inc., Credit
Suisse First Boston Corporation, Xxxxxxx Xxxxx, X.X. Xxxxxx Securities Inc.
and Salomon Brothers Inc and their respective successors; provided,
however, that if any of the foregoing or their affiliates shall cease to be
a leading dealer of publicly traded debt securities of the Company in The
City of New York (a "Primary Corporate Dealer"), the Remarketing Dealer
shall substitute therefor another Primary Corporate Dealer.
"Treasury Rate" means, with respect to the Remarketing Date, the rate per
annum equal to the semi-annual equivalent yield to maturity or interpolated
(on a day count basis) yield to maturity of the Comparable Treasury Issues
(as defined below), assuming a price for the Comparable Treasury Issues
(expressed as a percentage of its principal amount), equal to the
Comparable Treasury Price (as defined below) for the Remarketing Date.
"Comparable Treasury Issues" means the United States Treasury security or
securities selected by the Remarketing Dealer as having an actual or
interpolated maturity or maturities comparable to the remaining term of the
MOPPRS being remarketed.
"Comparable Treasury Price" means, with respect to the Remarketing Date,
(a) the offer prices for the Comparable Treasury Issues (expressed in each
case as a percentage of its principal amount) on the Determination Date, as
set forth on "Telerate Page 500" (or such other page as may replace
Telerate Page 500), or (b) if such page (or any successor page) is not
displayed or does not contain such offer prices on the Determination Date,
(i) the average of the Reference Treasury Dealer Quotations for the
Remarketing Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (ii) if the Remarketing Dealer obtains fewer
than four such Reference Treasury Dealer Quotations, the average of all
such Reference Treasury Dealer Quotations. "Telerate Page 500" means the
display designated as "Telerate Page 500" on Dow Xxxxx Markets Limited (or
such other page as may replace Telerate Page 500 on such service) or such
other service displaying the offer prices specified in (a) above as may
replace Dow Xxxxx Markets Limited. "Reference Treasury Dealer Quotations"
means, with respect to each Reference Treasury Dealer and the Remarketing
Date, the offer prices for the Comparable Treasury Issues (expressed in
each case as a percentage of its principal amount) quoted in writing to the
Remarketing Dealer by such Reference Treasury Dealer by 3:30 p.m., on the
Determination Date.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, Xxxxxx Brothers Inc., Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx & Co.
Incorporated and Salomon Brothers Inc and their respective successors;
provided, however, that if any of the foregoing or their affiliates shall
cease to be a primary U.S. Government securities dealer in The City of New
York (a "Primary Treasury Dealer"), the Remarketing Dealer shall substitute
therefor another Primary Treasury Dealer.
11
"Remaining Scheduled Payments" means, with respect to the MOPPRS, the
remaining scheduled payments of the principal thereof and interest thereon,
calculated at the Base Rate only, that would be due after the Remarketing
Date to and including the Stated Maturity Date; provided, however, that if
the Remarketing Date is not an Interest Payment Date with respect to the
MOPPRS, the amount of the next succeeding scheduled interest payment
thereon, calculated at the Base Rate only, will be reduced by the amount of
interest accrued thereon, calculated at the Base Rate only, to the
Remarketing Date.
(e) Subject to the Remarketing Dealer's election to remarket the MOPPRS as
provided in clause (c) above, the Remarketing Dealer shall notify the
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 Determination Date of the Interest Rate to Maturity
applicable to the MOPPRS effective from and including the Remarketing Date.
(f) In the event that the MOPPRS are remarketed as provided herein, the
Remarketing Dealer shall make, or cause the Trustee to make, payment to
the DTC Participant of each tendering Beneficial Owner of MOPPRS subject to
remarketing, by book entry through DTC by the close of business on the
Remarketing Date against delivery through DTC of such Beneficial Owner's
tendered MOPPRS, of 100% of the principal amount of the tendered MOPPRS
that have been purchased for remarketing by the Remarketing Dealer. The
Company shall make, or cause the Trustee to make, payment of interest to
each Beneficial Owner of MOPPRS due on the Remarketing Date by book entry
through DTC by the close of business on the Remarketing Date.
(g) In the event that (i) the Remarketing Dealer for any reason does not
notify the Company of the Interest Rate to Maturity by 4:00 p.m., New
York City time, on the Determination Date, or (ii) prior to the Remarketing
Date, the Remarketing Dealer has resigned and no successor has been
appointed on or before the Determination Date, or (iii) at any time after
the Remarketing Dealer elects on the Notification Date to remarket the
MOPPRS any event as set forth in Section 9 or Section 12 of this Agreement
shall have occurred, or (iv) the Remarketing Dealer for any reason does not
elect, by notice to the Company and the Trustee not later than the
Notification Date, to purchase the MOPPRS for remarketing on the
Remarketing Date, or (v) the Remarketing Dealer for any reason does not
purchase all tendered MOPPRS on the Remarketing Date, the Company shall
repurchase the MOPPRS as a whole on the Remarketing Date at a price equal
to 100 % of the principal amount of the MOPPRS plus all accrued and unpaid
interest, if any, on the MOPPRS to the Remarketing Date. In any such case,
payment will be made by the Company through the Trustee to the DTC
Participant of each tendering Beneficial Owner of MOPPRS, by book-entry
through DTC by the close of business on the Remarketing Date against
delivery through DTC of such Beneficial Owner's tendered MOPPRS.
(h) If the Remarketing Dealer elects to remarket the MOPPRS as provided in
clause (c) above, then not later than the Business Day immediately
preceding the Determination Date, the Company shall notify the Remarketing
Dealer and the Trustee if the Company irrevocably elects to exercise its
right to redeem the MOPPRS, in whole but not in part, from the Remarketing
Dealer on the Remarketing Date at the Optional Redemption Price. The
"Optional Redemption Price" shall be the greater of (i) 100% of the
principal amount of the MOPPRS and (ii) the sum of the present values of
the Remaining Scheduled Payments thereon, as determined by the Remarketing
12
Dealer, discounted to the Remarketing Date on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day months) at the Treasury Rate,
plus in either case accrued and unpaid interest from the Remarketing Date
on the principal amount being redeemed to the date of redemption. If the
Company elects to redeem the MOPPRS, it shall pay the redemption price
therefor in same-day funds by wire transfer to an account designated by the
Remarketing Dealer on the remarketing Date.
(i) The Remarketing Dealer may, in accordance with the terms of the
Indenture, modify the tender and settlement procedures set forth in the
Indenture in order to facilitate the tender and settlement process.
(j) The tender and settlement procedures described above, including
provisions for payment by purchasers of MOPPRS in the remarketing or for
payment to selling Beneficial Owners of tendered MOPPRS, may be modified to
the extent required by DTC or, if agreed to by the Remarketing Dealer in
accordance with Section 9(c)(viii) of this Agreement, to the extent
required to facilitate the tender and remarketing of MOPPRS in certificated
form, if the book-entry system is no longer available for the MOPPRS at the
time of the remarketing.
Section 5. Fees and Expenses. Subject to Section 12 of this Agreement,
for its services in performing its duties set forth herein, the Remarketing
Dealer will not receive any fees or reimbursement of expenses from the
Company.
Section 6. Resignation of the Remarketing Dealer. The Remarketing Dealer
may resign and be discharged from its duties and obligations hereunder at
any time, such resignation to be effective 10 days after delivery of a
written notice to the Company and the Trustee of such resignation. The
Remarketing Dealer also may resign and be discharged from its duties and
obligations hereunder at any time, such resignation to be effective
immediately, upon termination of this Agreement in accordance with Section
12(b) hereof. It shall be the sole obligation of the Company to appoint a
successor Remarketing Dealer.
Section 7. Dealing in the MOPPRS; Purchase of MOPPRS by the Company. (a)
Xxxxxxx Xxxxx, when acting as the Remarketing Dealer or in its individual
or any other capacity, may, to the extent permitted by law, buy, sell, hold
and deal in any of the MOPPRS. Xxxxxxx Xxxxx, as Holder or Beneficial Owner
of the MOPPRS, may exercise any vote or join as a Holder or Beneficial
Owner, as the case may be, in any action which any Holder or Beneficial
Owner of MOPPRS may be entitled to exercise or take pursuant to the
Indenture with like effect as if it did not act in any capacity hereunder.
The Remarketing Dealer, in its capacity either as principal or agent, may
also engage in or have an interest in any financial or other transaction
with the Company as freely as if it did not act in any capacity hereunder.
(b) The Company may purchase MOPPRS in the remarketing, provided that the
Interest Rate to Maturity established with respect to MOPPRS in the
remarketing is not different from the Interest Rate to Maturity that would
have been established if the Company had not purchased such MOPPRS.
Section 8. Information. (a) The Company agrees to furnish to the
Remarketing Dealer: (i) copies of each report or other document mailed or
filed by the Company with the Commission including the Registration
Statement and the Prospectus relating to the MOPPRS (including in each case
13
any documents incorporated therein by reference), (ii) notice of the
occurrence of any of the events set forth in clauses (c)(i), (ii), (v) and
(viii) of Section 9 hereof, and (iii) during the Remarketing Period, notice
of the occurrence of any of the events set forth in clauses (c)(iii) and
(vi) of Section 9 hereof and such other information as the Remarketing
Dealer may reasonably request from time to time, in such form as the
Remarketing Dealer may reasonably request, including, but not limited to,
the financial condition of the Company or any material subsidiary thereof.
The Company agrees to provide the Remarketing Dealer with as many copies of
the foregoing materials and information as the Remarketing Dealer may
reasonably request for use in connection with the remarketing and consents
to the use thereof for such purpose.
(b) If, at any time during the Remarketing Period, any event or condition
known to the Company relating to or affecting the Company, any subsidiary
thereof or the MOPPRS shall occur which might cause any of the Remarketing
Materials to include an untrue statement of a material fact or omit to
state a material fact, the Company shall promptly notify the Remarketing
Dealer in writing of the circumstances and details of such event or
condition.
Section 9. Conditions to Remarketing Dealer's Obligations. The
obligations of the Remarketing Dealer under this Agreement have been
undertaken in reliance on, and shall be subject to, (a) the due performance
in all material respects by the Company of its obligations and agreements
as set forth in this Agreement and the accuracy of the representations and
warranties in this Agreement and any certificate delivered pursuant hereto,
(b) the due performance in all material respects by the Company of its
obligations and agreements set forth in, and the accuracy in all material
respects as of the dates specified therein of the representations and
warranties contained in, the Underwriting Agreement, and (c) the further
condition that none of the following events shall have occurred after the
Remarketing Dealer elects on the Notification Date to remarket the MOPPRS:
(i) the rating of any securities of the Company shall have been down-graded
or put under surveillance or review, including being put on CreditWatch
or Watch List with negative implications, or withdrawn by a nationally
recognized statistical rating agency;
(ii) without the prior written consent of the Remarketing Dealer, the
Indenture (including the MOPPRS) shall have been amended in any manner, or
otherwise contain any provision not contained therein as of the date
hereof, that in either case in the judgment of the Remarketing Dealer
materially changes the nature of the MOPPRS or the remarketing procedures
(it being understood that, notwithstanding the provisions of this clause
(ii), the Company shall not be prohibited from amending the Indenture);
(iii) trading in any securities of the Company shall have been suspended or
materially limited by the Commission or the New York Stock Exchange, or if
trading generally on the American Stock Exchange or the New York Stock
Exchange or in the Nasdaq National Market shall have been suspended or
materially limited, or minimum or maximum prices for trading shall have
been fixed, or maximum ranges for prices shall have been required, by any
of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or if a banking moratorium shall have been declared by either
Federal or New York authorities;
14
(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 judgment of the Remarketing
Dealer, impracticable to remarket the MOPPRS or to enforce contracts for
the sale of the MOPPRS;
(v) an Event of Default (as defined in the Indenture), or any event which,
with the giving of notice or passage of time, or both, would constitute an
Event of Default, with respect to the MOPPRS shall have occurred and
be continuing;
(vi) a material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, shall have occurred since the Notification
Date or since the respective dates as of which information is given in the
Exchange Act Documents;
(vii) if a prospectus is required under the Securities Act to be delivered
in connection with the remarketing of the MOPPRS, the Company shall fail to
furnish to the Remarketing Dealer on the Remarketing Date the officers'
certificate, opinion and comfort letter referred to in Section 3(e) of this
Agreement and such other documents and opinions as counsel for the
Remarketing Dealer may reasonably require for the purpose of enabling such
counsel to pass upon the sale of MOPPRS in the remarketing as herein
contemplated and related proceedings, or in order to evidence the accuracy
and completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; or
(viii) the MOPPRS are not maintained in book-entry form with DTC or any
successor thereto; provided, that the Remarketing Dealer, in its sole
discretion and subject to receipt of an opinion of counsel for the Company
reasonably satisfactory to the Remarketing Dealer, may waive the foregoing
condition if in the Remarketing Dealer's judgment the Indenture and the
MOPPRS can be amended, and they are amended, so as to permit the
remarketing of the MOPPRS in certificated form and otherwise as
contemplated herein;
and the Remarketing Dealer shall have received on the Remarketing Date a
certificate of the chief executive officer and of the chief financial
officer of the Company, dated as of the 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 Remarketing Date, (ii) the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to the Remarketing Date and (iii) none of the events specified in the
preceding clause (c) has occurred.
(d) In furtherance of the foregoing, the effectiveness of the Remarketing
Dealer's election on the Notification Date to remarket the MOPPRS shall be
subject to the condition that the Remarketing Dealer shall have received a
certificate of the chief executive officer, chief financial officer or the
treasurer of the Company, dated as of the Notification Date, to the effect
that (i) the Company has, prior to the Remarketing Dealer's election on
15
the Notification Date to remarket the MOPPRS, provided the Remarketing
Dealer with notice of all events as required under Section 3(a) of this
Agreement, (ii) the representations and warranties in this Agreement are
true and correct at and as of the Notification Date and (iii) the Company
has complied 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 Remarketing Dealer as
soon as practicable following notification by the Remarketing Dealer to the
Company on the Notification Date of its election to remarket the MOPPRS and
in any event prior to the Determination Date.
In the event of the failure of any of the foregoing conditions, the
Remarketing Dealer may terminate its obligations under this Agreement.
Section 10. Indemnification. (a) The Company agrees to indemnify and hold
harmless the Remarketing Dealer and its officers, directors and employees
and each person, if any, who controls the Remarketing Dealer within the
meaning of Section 20 of the Exchange Act as follows:
(i) against any loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of, (A) the failure to have an effective registration
statement under the Securities Act relating to the MOPPRS, if required, or
the failure to satisfy the prospectus delivery requirements of the
Securities Act because the Company failed to provide the Remarketing Dealer
with an updated Prospectus for delivery, if required, or (B) any untrue
statement or alleged untrue statement of a material fact contained in any
of the Remarketing Materials (including any incorporated documents), or (C)
the omission or alleged omission therefrom of a material fact necessary to
make the statements therein, in the light of the circumstances in which
they were made, not misleading, or (D) any violation by the Company of, or
any failure by the Company to perform any of its obligations under, this
Agreement, or (E) the acts or omissions of the Remarketing Dealer in
connection with its duties and obligations to determine the Interest Rate
to Maturity hereunder except those that are finally judicially determined
to be due to its gross negligence or willful misconduct;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever arising out of, or based upon, any of items (A) through (E) in
clause (i) above; provided that (subject to clause (d) below) such
settlement is effected with the written consent of the Company, which
consent shall not be unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by the Remarketing Dealer),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever arising out of,
or based upon, any of items (A) through (E) in clause (i) above to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that the foregoing indemnity shall not apply to any
losses, liabilities, claims, damages and expenses to the extent arising out
of any untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by the Remarketing Dealer
expressly for use in the Remarketing Materials.
16
(b) The Remarketing Dealer agrees to indemnify and hold harmless the
Company, its directors and each of its officers who signed the Registration
Statement, from and against any loss, liability, claim, damage and expense,
as incurred, but only with respect to untrue statements or omissions made
in the Remarketing Materials in reliance upon and in conformity with
information furnished to the Company in writing by the Remarketing Dealer
expressly for use in such Remarketing Materials. The indemnity agreement in
this paragraph shall extend upon the same terms and conditions to each
person, if any, who controls the Company within the meaning of Section 20
of the Exchange Act.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In
the case of parties indemnified pursuant to clause (a) above, counsel to
the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in the
case of parties indemnified pursuant to clause (b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 10 or Section 11 hereof (whether or not
the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission or fault, culpability or a failure to act
by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by clause (a) (ii) effected without
its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
17
(e) The indemnity agreements contained in this Section 10 shall remain
operative and in full force and effect, regardless of any investigation
made by or on behalf of the Remarketing Dealer, and shall survive the
termination or cancellation of this Agreement and the remarketing of any
MOPPRS hereunder.
Section 11. Contribution. If the indemnification provided for in Section
10 hereof is for any reason unavailable to or insufficient to hold harmless
an indemnified party in respect of any losses, liabilities, claims, damages
or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i)
in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Remarketing Dealer on the
other hand from the remarketing of the MOPPRS pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Remarketing Dealer on the
other hand in connection with the acts, failures to act, statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Remarketing Dealer on the other hand in connection with the remarketing of
the MOPPRS pursuant to this Agreement shall be deemed to be in the same
respective proportions as (i) the aggregate principal amount of the MOPPRS,
and (ii) the aggregate positive difference, if any, between the price paid
by the Remarketing Dealer for the MOPPRS tendered on the Remarketing Date
and the price at which the MOPPRS are sold by the Remarketing Dealer in the
remarketing.
The relative fault of the Company on the one hand and the Remarketing
Dealer on the other hand shall be determined by reference to, among other
things, the responsibility hereunder of the applicable party for any act or
failure to act relating to the losses, liabilities, claims, damages or
expenses incurred or, in the case of any losses, liabilities, claims,
damages or expenses arising out of any untrue or alleged untrue statement
of a material fact contained in any of the Remarketing Materials or the
omission or alleged omission to state a material fact therefrom, whether
any such untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information
supplied by the Company or by the Remarketing Dealer and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Remarketing Dealer agree that it would not be just and
equitable if contribution pursuant to this Section 11 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 11. The aggregate amount of losses, liabilities, claims, damages
and expenses incurred by an indemnified party and referred to above in this
Section 11 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing
or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such act or failure to act or untrue or alleged
untrue statement or omission or alleged omission.
18
Notwithstanding the provisions of this Section 11, the Remarketing Dealer
shall not be required to contribute any amount in excess of the amount by
which the total price at which the MOPPRS remarketed by it and resold to
the public were sold to the public exceeds the amount of any damages which
the Remarketing Dealer has otherwise been required to pay by reason of any
act or failure to act for which it is responsible hereunder or any untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 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
Remarketing Dealer within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act shall have the same rights to
contribution as the Remarketing Dealer, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company.
Section 12. Termination of or Redetermination of
Interest Rate to Maturity. (a) This Agreement shall terminate as to the
Remarketing Dealer on the effective date of the resignation of the
Remarketing Dealer pursuant to Section 6 hereof or the repurchase of the
MOPPRS by the Company pursuant to Section 4(g) hereof or the redemption of
the MOPPRS by the Company pursuant to Section 4(h) hereof.
(b) In addition, the Remarketing Dealer may terminate all of its
obligations under this Agreement immediately by notifying the Company and
the Trustee of its election to do so, at any time on or before the
Remarketing Date, in the event that: (i) any of the conditions referred to
or set forth in Section 9(a) or (b) hereof have not been met or satisfied
in full, (ii) any of the events set forth in Section 9(c) shall have
occurred after the Remarketing Dealer elects on the Notification Date to
remarket the MOPPRS or (iii) the Remarketing Dealer reasonably determines
after consultation with the Company, that it shall not have received all of
the information, whether or not specifically referenced herein, necessary
to fulfill its obligations under this Agreement.
(c) 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 Remarketing Dealer for all of
its out-of-pocket expenses, including the reasonable fees and disbursements
of counsel for the Remarketing Dealer, and except further as set forth in
Section 12(d) below. Sections 1, 10, 11, 12(c) and 12(d) shall survive
such termination and remain in full force and effect.
(d) In the case of either (i) termination of this Agreement pursuant to
Section 12(b) or (ii) termination of this Agreement due to the occurrence,
prior to the Remarketing Dealer's election on the Notification Date to
remarket the MOPPRS, of any event set forth in Section 9(c)(ii), (v) or
(viii), upon the request of the Remarketing Dealer, the Company shall
immediately following the Call Price Determination Date (as defined below)
pay the Remarketing Dealer, in same-day funds by wire transfer to an
19
account designated by the Remarketing Dealer, the fair market value,
calculated as set forth below, of the Remarketing Dealer's right to
purchase and remarket the MOPPRS pursuant to this Agreement (the "Call
Price").
In the case of termination of this Agreement pursuant to Section 12(b), the
Call Price shall be equal to the excess of (i) the present value of the
Remaining Scheduled Payments determined as provided in Section 4 over (ii)
the aggregate principal amount of the MOPPRS.
In the case of the occurrence, prior to the Remarketing Dealer's election
on the Notification Date to remarket the MOPPRS, of any event set forth in
Section 9(c)(ii), (v) or (viii), the Call Price shall be determined in good
faith by the Remarketing Dealer in the following manner. The Remarketing
Dealer, with the consent of the Company, which consent shall not be
unreasonably withheld, shall select five reference market dealers. The
Remarketing Dealer 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 obtained shall be
used.
The Remarketing Dealer shall determine the applicable Call Price on the
Business Day immediately following the date of termination or as soon as
practicable thereafter (the "Call Price Determination Date"). The
Remarketing Dealer 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.
(e) This Agreement shall not be subject to termination by the Company.
Section 13. Remarketing Dealer Performance, Duty of Care. The duties and
obligations of the Remarketing Dealer shall be determined solely by the
express provisions of this Agreement and the Indenture. No implied
covenants or obligations of or against the Remarketing Dealer shall be read
into this Agreement or the Indenture. In the absence of bad faith on the
part of the Remarketing Dealer, the Remarketing Dealer may conclusively
rely upon any document furnished to it, which purports to conform to the
requirements of this Agreement and the Indenture, as to the truth of the
statements expressed in any of such documents. The Remarketing Dealer shall
be protected in acting upon any document or communication reasonably
believed by it to have been signed, presented or made by the proper party
or parties. The Remarketing Dealer shall incur no liability to the Company
in its individual capacity or as Remarketing Dealer for any action or
failure to act in connection with the determination of the Interest Rate to
Maturity, except as a result of gross negligence or willful misconduct on
its part.
20
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 MOPPRS are outstanding or the completion of the remarketing of
the MOPPRS. Regardless of any termination of this Agreement pursuant to any
of the provisions hereof, the obligations of the Company pursuant to
Sections 10, 11 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 the Remarketing Dealer, except that
the rights and obligations of the Company may be assigned and delegated to
any successor of the Company permitted by Article 5 of the Indenture. The
rights and obligations of the Remarketing Dealer hereunder may not be
assigned or delegated to any other person without the prior written consent
of the Company. This Agreement shall inure to the benefit of and be binding
upon the Company and the Remarketing Dealer and their respective successors
and assigns, and will not confer any benefit upon any other person,
partnership, association or corporation other than, persons, if any,
controlling the Remarketing Dealer within the meaning of Section 15 of the
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 MOPPRS
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 Indenture 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
21
shall be made in writing (which may include facsimile or other electronic
transmission) and shall be deemed to have been validly given or made when
delivered or mailed, registered or certified mail, return receipt requested
and postage prepaid, addressed as follows:
(a) to the Company:
Tyson Foods, Inc.
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx Xxx Xxxxxx
Facsimile No.: (000) 000-0000
(b) to Xxxxxxx Xxxxx:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxxx; Xxxxx Xxxxxxx
Facsimile Nos.: (000) 000-0000; (000) 000-0000
or to such other address as the Company or the Remarketing Dealer shall
specify in writing.
IN WITNESS WHEREOF, each of the Company and the Remarketing Dealer has
caused this to be executed in its name and on its
behalf by one of its duly authorized officers as of the date first above
written.
TYSON FOODS, INC.
By /s/ Xxxxxx Xxxxxxx
------------------------
Name: Xxxxxx Xxxxxxx
Title: Chairman of the Board of Directors
and Chief Executive Officer
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By /s/ Xxxxxxx X. X'Xxxxx
-----------------------------
Name: Xxxxxxx X. X'Xxxxx
Title:
22
