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S&C Draft of June 10, 1999
THE SEAGRAM COMPANY LTD.
XXXXXX X. XXXXXXX & SONS INC.
-% SUBORDINATED DEFERRABLE NOTES DUE 2004
[date]
[NAME OF REMARKETING AGENT]
____________________________
____________________________
Ladies and Gentlemen:
[Name of Remarketing Agent], a _____________________ (the
"Remarketing Agent"), is undertaking to remarket -% Subordinated Deferrable
Notes due 2004 (stated liquidation amount $___ per Subordinated Deferrable Note)
(the "Notes"), issued by Xxxxxx X. Xxxxxxx and Sons, Inc., an Indiana
corporation ("JES"), pursuant to the Purchase Contract Agreement between The
Seagram Company Ltd., a Canadian corporation (the "Company"), and The Bank of
New York, as Purchase Contract Agent (the "Purchase Contract Agent"), dated as
of June - , 1999 (the "Purchase Contract Agreement"). The Notes are guaranteed
by the Company (the "Guarantees"). The Notes have been issued pursuant to an
indenture dated as of September 15, 1991, among the Company, JES and The Bank of
New York as Indenture Trustee (the "Trustee"), as amended on June -, 1999 (the
"Indenture").
Capitalized terms used and not defined in this Agreement shall
have the meanings set forth in the Purchase Contract Agreement or the Indenture,
as the case may be.
The Remarketing (as defined below) of the Notes is provided
for in the Purchase Contract Agreement. As used in this Agreement, the term
"Remarketed Notes" means the Notes subject to the Remarketing as notified to the
Remarketing Agent by the Purchase Contract Agent on or prior to the fourth
Business Day prior to the Purchase Contract Settlement Date; the term
"Remarketing Procedures" means the procedures in connection with the Remarketing
of the Notes described in the Purchase Contract Agreement and the Indenture, as
the case may be; and the term "Remarketing" means the remarketing of the
Remarketed Notes pursuant to the Remarketing Procedures.
Section 1. Appointment and Obligations of the Remarketing Agent. (a)
The Company and JES (the "Issuers") hereby appoint ___________ as exclusive
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Remarketing Agent, and ____________ hereby accepts appointment as Remarketing
Agent, for the purpose of (i) Remarketing Remarketed Notes on behalf of the
holders thereof and (ii) performing such other duties as are assigned to the
Remarketing Agent in the Remarketing Procedures, all in accordance with and
pursuant to the Remarketing Procedures.
(b) The Remarketing Agent agrees (i) to use commercially reasonable
efforts to remarket the Remarketed Notes tendered or deemed tendered to the
Remarketing Agent in the Remarketing, (ii) to notify the Issuers, the Depository
and the Trustee promptly of the Reset Rate and (iii) to carry out such other
duties as are assigned to the Remarketing Agent in the Remarketing Procedures,
all in accordance with the provisions of the Remarketing Procedures.
(c) On the sixth Business Day prior to March - 2002, after
identification by the Purchase Contract Agent of the number of Holders of Units
electing to effect a Collateral Substitution, the Remarketing Agent shall
purchase an option, excercisable for the delivery on March - 2002 of 100.25% of
the Treasury Consideration in respect of such Notes. The Company and JES shall
reimburse the Remarketing Agent for the purchase of the option. The Remarketing
Agent shall notify the Purchase Contract Agent by 3:00 p.m on the sixth Business
Day prior to March - 2002, of the [AMOUNT] [CASH] required, pursuant to the
option, to purchase the Treasury Consideration necessary for a Holder to effect
a Collateral Substitution.
(d) On the third Business Day immediately preceding ______, 2002 (the
"Remarketing Date"), the Remarketing Agent shall use commercially reasonable
efforts to remarket, at a price equal to 100.25% of the Treasury Consideration,
the Remarketed Notes tendered or deemed tendered for purchase.
(e) If, as a result of the efforts described in Section l(b), the
Remarketing Agent determines that it will be able to remarket all Remarketed
Notes tendered or deemed tendered for purchase at a price of 100.25% of the
Treasury Consideration prior to 4:00 P.M., New York City time, on the
Remarketing Date, the Remarketing Agent shall determine (i) the Reset Rate,
which shall be the rate per annum (rounded to the nearest one-thousandth (0.001)
of one percent per annum) that the Remarketing Agent determines, to be the
lowest rate per annum that will enable it to remarket all Remarketed Notes
tendered or deemed tendered for Remarketing and (ii) purchase the Treasury
Consideration related to the Remarketed Notes and the Notes for which Holders
have effected a Collateral Substitution.
(f) If none of the holders of Remarketed Notes elects to have
Remarketed Notes remarketed in the Remarketing, the Remarketing Agent shall
determine the rate
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that would have been established had a Remarketing been held on the Remarketing
Date, and such rate shall be the Reset Rate.
(g) If the Remarketing Agent cannot remarket the Notes on the
Remarketing Date, the Remarketing Agent will continue to attempt to remarket the
Notes until June -, 2002.
(h) If, by 4:00 P.M., New York City time, on June -, 2002, the
Remarketing Agent is unable to remarket all Remarketed Notes tendered or deemed
tendered for purchase, a failed Remarketing ("Failed Remarketing") shall be
deemed to have occurred, and the Remarketing Agent shall so advise by telephone
the Purchase Contract Agent, the Trustee, the Company and JES.
(i) By approximately 4:30 P.M., New York City time, on the Remarketing
Date, provided that there has not been a Failed Remarketing, the Remarketing
Agent shall advise, by telephone (i) the Trustee, the Company and JES of the
Reset Rate determined in the Remarketing and the number of Remarketed Notes sold
in the Remarketing, (ii) each purchaser (or the Depositary participant thereof)
of the Reset Rate and the number of Remarketed Notes such purchaser is to
purchase and (iii) each purchaser to give instructions to its Depositary
participant to pay the purchase price on the March -, 2002 in same day funds
against delivery of the Remarketed Notes purchased through the facilities of the
Depositary.
(j) In accordance with the Depositary's normal procedures, on
__________, 2002, the transactions described above with respect to each Note
tendered for purchase and sold in the Remarketing shall be executed through the
Depositary, and the accounts of the respective Depositary participants shall be
debited and credited and such Notes delivered by book-entry as necessary to
effect purchases and sales of such Notes. The Depositary shall make payment in
accordance with its normal procedures.
(k) The tender and settlement procedures set in this Section 1,
including provisions for payment by purchasers of the Notes in the Remarketing,
shall be subject to modification to the extent required by the Depositary or if
the book-entry system is no longer available for the Notes at the time of the
Remarketing, to facilitate the tendering and remarketing of the Notes in
certificated form. In addition, the Remarketing Agent may modify the settlement
procedures set forth herein in order to facilitate the settlement process.
(l) The Remarketing Agent shall remit to the Collateral Agent the
Treasury Consideration subject to the Pledge Agreement.
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(m) The Remarketing Agent shall return as a [Remarketing Fee] an amount
not exceeding 28 basis points (.28%) of the cash purchase price of the Treasury
Consideration.
2. Representations, Warranties and Agreements of the Company and JES.
The Company and JES jointly and severally represent, warrant and agree (i) on
and as of the date hereof, (ii) on and as of the date the Prospectus or other
Remarketing Materials (each as defined in Section 2(a) below) are first
distributed in connection with the Remarketing (the "Commencement Date"), (iii)
on and as of the Remarketing Date, and (iv) on and as of March -, 2002 that:
(a) A registration statement or registration statements on
Form S-3 (File No. 333-78395) and an amendment or amendments thereto
with respect to the initial offering of the Notes have (i) been
prepared by the Issuers in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the
rules and regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder, (ii) been filed
with the Commission under the Securities Act and (iii) become effective
under the Securities Act; a registration statement on Form S-3, if
required to be filed in connection with the Remarketing, may also be
prepared by the Issuers in conformity with the requirements of the
Securities Act and the Rules and Regulations and filed with the
Commission under the Securities Act; and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended, (the
"Trust Indenture Act"). Copies of such registration statement or
registration statements that have become effective and the amendment or
amendments to such registration statements have been delivered by the
Issuers to you. As used in this Agreement, "Effective Time" means the
date and time as of which the last of such registration statements that
have become effective or may be filed, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time of
such last registration statement; Preliminary Prospectus means each
prospectus included in such last registration statement, or amendment
thereto, before it became effective under the Securities Act and any
prospectus filed by the Issuers with your consent pursuant to Rule
424(a) of the Rules and Regulations; "Registration Statement" means
such last registration statement, as amended at its Effective Time,
including documents incorporated by reference therein at such time and,
if applicable, all information contained in the final prospectus filed
with the Commission pursuant to Rule 424(b) of the Rules and
Regulations, including any information deemed to be part of such
Registration Statement as of the Effective Time pursuant to paragraph
(b) of Rule 430A of the Rules and Regulations; and "Prospectus" means
such final prospectus, as first filed pursuant to Rule 424(b) of the
Rules and Regulations. Reference made herein to any Preliminary
Prospectus,
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the Prospectus or any other information furnished by the Issuers to the
Remarketing Agent for distribution to investors in connection with the
Remarketing (the "Remarketing Materials") shall be deemed to refer to
and include any documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act as of the date of such
Preliminary Prospectus or the Prospectus, as the case may be, or, in
the case of Remarketing Materials, referred to as incorporated by
reference therein, and any reference to any amendment or supplement to
any Preliminary Prospectus, the Prospectus or the Remarketing Materials
shall be deemed to refer to and include any document filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), after
the date of such Preliminary Prospectus or the Prospectus incorporated
by reference therein pursuant to Item 12 of Form S-3 or, if so
incorporated, the Remarketing Materials, as the case may be; and any
reference to any amendment to the Registration Statement shall be
deemed to include any annual report of the Company or JES filed with
the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act
after the Effective Time that is incorporated by reference in the
Registration Statement.
(b) The Registration Statement conforms (and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform) in all respects to the
requirements of the Securities Act and the Rules and Regulations, and
the Registration Statement, the Prospectus and the Remarketing
Materials do not and will not, as of the Effective Date (as to the
Registration Statement and any amendment thereto), as of the applicable
filing date (as to the Prospectus and any amendment or supplement
thereto) and as of the Commencement Date, Remarketing Date and Purchase
Contract Settlement Date (as to any Remarketing Materials) contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided that no representation and warranty is
made as to the statement of eligibility and qualification on Form T-1
of the Trustee under the Trust Indenture Act, or as to information
contained in or omitted from the Registration Statement, the Prospectus
or the Remarketing Materials in reliance upon and in conformity with
written information furnished to the Issuers by the Remarketing Agent
specifically for inclusion therein; the Indenture, the Purchase
Contract Agreement each conform in all material respects to the
requirements of the Trust Indenture Act and the applicable rules and
regulations thereunder; and the Commission has not issued an order
preventing or suspending the use of the Registration Statement, any
Preliminary Prospectus, the Prospectus or the Remarketing Materials.
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(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents,
as of their respective effective or filing dates, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
and will not, as of their respective effective or filing dates, contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall apply only to documents so filed and incorporated by
reference during the period that a prospectus relating to the Units is
required to be delivered in connection with sales of such Units by any
underwriters (such period being hereinafter sometimes referred to as
the "prospectus delivery period"), and provided further, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Remarketing Agent expressly
for use therein.
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements of
the Company included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree which is
material to the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus or in the
Remarketing Materials; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been any material decrease in the capital stock or
increase in long-term debt of the Company and its subsidiaries taken as
a whole, or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Prospectus or
in the Remarketing Materials;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing (in this section references
to the good standing of
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any Canadian corporation refer only to the fact that such corporation
has a current certificate of compliance) under the laws of Canada, with
power and authority to own its properties and conduct its business as
described in the Prospectus or any Remarketing Materials. Each of the
following subsidiaries of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, such subsidiaries being hereinafter
sometimes referred to as the "Significant Subsidiaries": X.X. Xxxxxxx
Corp., JES, JES Developments, Inc., PolyGram N.V. and Universal
Studios, Inc.;
(f) All of the issued common shares of the Company have been
duly and validly authorized and issued, and are fully paid and
non-assessable; and all of the issued shares of capital stock of each
of the Specified Subsidiaries have been duly and validly authorized and
issued, are fully paid and non-assessable and, except for Polygram N.V.
and Universal Studios, Inc., are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims.
The Company indirectly owns approximately 91.9% of each of PolyGram
N.V. and Universal Studios, Inc;
(g) The Notes have been duly authorized, executed, issued and
delivered by JES (assuming due authentication by the Trustee),
constitute valid and binding obligations of JES entitled to the
benefits provided by the Indenture and are enforceable in accordance
with its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principle; the Indenture has been duly authorized, executed and
delivered by the Company and JES and (assuming due execution and
delivery by the Trustee), constitutes a valid and binding agreement of
each of the Company and JES, enforceable against the Company and JES in
accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Notes and the Indenture conform to the
descriptions thereof contained in the Prospectus;
(h) The execution, delivery and performance this Agreement by
the Company and JES, the issue and sale of the Notes by JES, the
execution, delivery and performance of the Guarantees by the Company,
the compliance by the Company with the provisions of this Agreement,
the Guarantees, the Pledge Agreement and the Indenture, the compliance
by JES with the provisions of this Agreement, the Indenture, the Notes
and the , and the consummation by the Company and
JES of the transactions herein and therein contemplated, will not
conflict with or result in a material breach of any of the terms or
provisions of, or constitute a material default under, or result in the
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creation or imposition of any material lien, charge or encumbrance upon
any of the property or assets of the Company or any of its Specified
Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement or other agreement material to the operations of
the Company or instrument to which the Company or any of its Specified
Subsidiaries is a party or by which the Company or any of its Specified
Subsidiaries is bound or to which any of the property or assets of the
Company or any of its Specified Subsidiaries is subject, or which would
cause a current or prospective material adverse change in or affecting
the financial position, shareowners' equity or results of operations of
the Company and its subsidiaries considered as a whole or affect the
validity of the Units or the legal authority of the Company to perform
its obligations under the Units; nor will such action result in any
violation of the provisions of the Certificate of Amalgamation, as
amended, or the General By-laws of the Company, or any statute or any
order, rule or regulation of any court or governmental agency or body
in the United States having jurisdiction over the Company or any of its
Specified 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 over the Company or
JES is required for the entry into this Agreement by the Company and
JES, the issue and sale of the Notes by JES, the execution, delivery
and performance of the Guarantees by the Company and JES, the
compliance by the Company with all of the provisions of this Agreement,
the Pledge Agreement, or the Indenture, the compliance by JES with the
provisions of this Agreement, the , the Indenture
and the Notes, and the consummation of the transactions herein or
therein contemplated by the Company and JES, except in connection with
their remarketing pursuant to the , the
registration under the Act of the Notes and the approval of listing of
the Units by the New York Stock Exchange ("NYSE"); such consents as
have been obtained under the Act, the Exchange Act and the Trust
Indenture Act; in connection with their remarketing pursuant to the
; and such consents, authorizations, registrations
or qualifications as may be required under state, provincial or other
foreign securities or Blue Sky laws in connection with the purchase and
distribution of the Units by the Underwriters;
(i) The Guarantees have been duly and validly authorized by
the Company and upon the due execution, authentication and delivery of
the Notes and due endorsement of the Guarantees thereon, such
Guarantees constitute valid and binding obligations of the Company,
enforceable in accordance with their terms, subject, as the
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and
to general equity principles; and the Guarantees conform to the
descriptions thereof in the Prospectus;
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(j) This Agreement and the Pledge Agreement have been duly and
validly authorized by the Company, and, when executed and delivered by
the other parties thereto, will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms,
subject, as to enforcement, bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; the Pledge Agreement and this
Agreement conform or will conform to the descriptions thereof in the
Prospectus; and the Pledge Agreement creates, as collateral security
for the performance when due by the holders from time to time of the
Units of their respective obligations under the Purchase Contracts, a
legal, valid and perfected security interest (as that term is defined
in the Uniform Commercial Code, as adopted and currently in effect in
the State of New York), in favor of the Collateral Agent, in the right,
title and interest of such holders in the Pledged Securities (as
defined in the Pledge Agreement) constituting a part of such Units;
(k) This Agreement has been duly and validly authorized by JES
and, when executed and delivered by the other parties thereto, will
constitute valid and binding obligations of JES, enforceable in
accordance with its terms, subject, as to enforcement, bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(l) Other than as set forth in the Prospectus or in any
Remarketing Materials, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or
of which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, are reasonably expected to have a material adverse effect
on the current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries;
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others; and
(m) PricewaterhouseCoopers LLP and KPMG Accountants N.V., who
have certified certain financial statements of the Company and its
subsidiaries, are each independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder.
3. Fees and Expenses. (a) For the performance of its services as
Remarketing Agent hereunder, the Remarketing Agent shall return an amount not
exceeding 25 basis points (.25%) of the cash purchase price of the Treasury
Consideration.
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(b) Each of the Company and JES, severally and jointly, covenants and
agrees with the Remarketing Agent that (a) the Company and JES will pay or cause
to be paid the following: (i) the costs incident to the preparation and printing
of the Registration Statement, prospectus and any Remarketing Materials and any
amendments or supplements thereto; (ii) the costs of distributing the
Registration Statement, prospectus and any Remarketing Materials and any
amendments or supplements thereto; (iii) any fees and expenses of qualifying the
Remarketed Securities under the securities laws of the several jurisdictions as
provided in Section 4(g) and of preparing, printing and distributing a Blue Sky
memorandum (including related fees and expenses of counsel to the Remarketing
Agent); (iv) all other costs and expenses incident to the performance of the
obligations of the Company and JES hereunder; and (v) the reasonable fees and
expenses of counsel tot he Remarketing Agent in connection with their duties
hereunder.
4. Further Agreements of the Company and JES. The Company and JES,
jointly and severally, agree to use their reasonable best efforts:
(a) To prepare any registration statement or prospectus, if
required, in connection with the Remarketing, in a form approved by the
Remarketing Agent and to file any such prospectus pursuant to the
Securities Act within the period required by the Rules and Regulations;
to advise the Remarketing Agent, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement
has been filed or becomes effective or any supplement to the Prospectus
or any amended Prospectus has been filed and to furnish the Remarketing
Agent with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and
for so long as the delivery of a prospectus is required in connection
with the offering or sale of Remarketed Notes; to advise the
Remarketing Agent, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing
or suspending the use of the Prospectus, of the suspension of the
qualification of any of the Remarketed Notes for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the
use of any Prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal.
(b) To furnish promptly to the Remarketing Agent and to
counsel for the Remarketing Agent a signed copy of the Registration
Statement as originally
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filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith.
(c) To deliver promptly to the Remarketing Agent in New York
City such number of the following documents as the Remarketing Agent
shall request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement and the
Indenture, (ii) the Prospectus and any amended or supplemented
Prospectus, (iii) any document incorporated by reference in the
Prospectus (excluding exhibits thereto) and (iv) any Remarketing
Materials; and, if the delivery of a prospectus is required at any time
in connection with the Remarketing and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Securities Act or the Exchange Act, to notify the Remarketing
Agent and, upon its request, to file such document and to prepare and
furnish without charge to the Remarketing Agent and to any dealer in
securities as many copies as the Remarketing Agent may from time to
time request of an amended or supplemented Prospectus which will
correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Remarketing
Agent, be required by the Securities Act or requested by the
Commission.
(e) Prior to filing with the Commission (i) any amendment to
the Registration Statement or supplement to the Prospectus or any
document incorporated by reference in the Prospectus or (ii) any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Remarketing Agent and counsel for the
Remarketing Agent; and not to file any such amendment or supplement
which shall be disapproved by the Remarketing Agent promptly by
reasonable notice.
(f) As soon as practicable after the Effective Date of the
Registration Statement to make generally available to the Company's
securityholders and to deliver to the Remarketing Agent an earnings
statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the
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Securities Act and the Rules and Regulations (including, at the option
of the Company, Rule 158).
(g) Promptly from time to time to take such action as the
Remarketing Agent may reasonably request to qualify any of the
Remarketed Notes and the obligations of the Company under the
Guarantees for offering and sale under the securities laws of such
jurisdictions as the Remarketing Agent may request and to comply with
such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete the
distribution of the Notes; provided that in connection therewith,
neither the Company nor JES shall be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
5. Conditions to the Remarketing Agent's Obligations. The obligations
of the Remarketing Agent hereunder are subject to the accuracy, on and as of the
date when made, of the representations and warranties of the Company and JES
contained herein, to the performance by the Company and JES of their respective
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the
Commission; no stop order suspending the effectiveness of the
Registration Statement or any part thereof or suspending the
qualification of the Indenture, the Guarantees or the Purchase Contract
Agreement shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and any
request of the Commission for inclusion of additional information in
the Registration Statement or the Prospectus or otherwise shall have
been complied with.
(b) The Remarketing Agent shall not have discovered and
disclosed to the Company on or prior to the Remarketing Date that the
Prospectus, the Registration Statement, or the Remarketing Materials
or any amendment or supplement thereto contains any untrue statement of
a fact which, in the opinion of counsel for the Remarketing Agent, is
material or omits to state any fact which, in the opinion of such
counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the
Indenture, the Remarketed Notes, the Guarantees, the Prospectus, the
Registration Statement, the Remarketing Materials and all other legal
matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to
counsel for the Remarketing Agent, and the Issuers shall have
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furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Xxxxxxx Xxxxxxx & Xxxxxxxx, U.S. counsel for the Company
and JES, shall have furnished to you their written opinion, dated the
Remarketing Date, in form and substance satisfactory to you (such
counsel being entitled to state that they have assumed that any
document referred to in their opinion and executed by the Company has
been duly authorized, executed and delivered pursuant to Canadian law
and being entitled to rely, as to all matters of Canadian law, solely
upon the opinion of Canadian counsel described in paragraph (d) of this
Section 7) (such counsel also being entitled to rely in respect of
matters of law other than of United States federal or New York law on
opinions of local counsel of the Company and its subsidiaries and as to
matters of fact upon certificates of public officials and of officers
of the Company or its subsidiaries, provided that such counsel shall
state that they believe that both you and they are justified in relying
upon such opinions and certificates), to the effect that:
(i) Xxxxxx X. Xxxxxxx & Sons, Inc. has been duly
incorporated and is validly existing as a corporation under
the laws of the State of Indiana; and each of X.X. Xxxxxxx
Corp., JES Developments, Inc. and Universal Studios, Inc. has
been duly incorporated and is validly existing and in good
standing under the laws of the State of Delaware;
(ii) All of the outstanding shares of capital stock
of Xxxxxx X. Xxxxxxx & Sons, Inc. have been duly authorized by
Xxxxxx X. Xxxxxxx & Sons, Inc. and are validly issued, are
fully paid and non-assessable and are owned indirectly by the
Company, to the knowledge of such counsel, free and clear of
any adverse claim; all of the outstanding shares of capital
stock of X.X. Xxxxxxx Corp. have been duly authorized by X.X.
Xxxxxxx Corp. and are validly issued, are fully paid and
non-assessable and are owned indirectly by Xxxxxx X. Xxxxxxx &
Sons, Inc. to the knowledge of such counsel, free and clear of
any adverse claim; all of the outstanding shares of capital
stock of JES Developments, Inc. have been duly authorized by
JES Developments Inc. and are validly issued, are fully paid
and non-assessable, and are owned indirectly by Xxxxxx X.
Xxxxxxx & Sons, Inc. to the knowledge of such counsel, free
and clear of any adverse claim; and all the outstanding Shares
of capital stock of Universal Studios, Inc. have been duly
authorized by Universal Studios, Inc. and are validly issued,
are fully paid and non-assessable, and such that are owned
indirectly by the Company, to the best knowledge of such
counsel, free and clear of any adverse claim;
-13-
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(iii) To such counsel's knowledge, there are no legal
or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which
are required to be described in the Prospectus which are not
described as required; and to such counsel's knowledge no such
proceedings have been asserted by governmental authorities or
by others;
(iv) This Agreement has been duly authorized,
executed and delivered by the Company and JES;
[(v) The Registration Statement was declared
effective under the Act, and the Indenture was qualified under
the Trust Indenture Act, as of the date and time specified in
such opinion, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date specified
therein and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose is pending or
threatened by the Commission.]
(vi) The provisions of the Pledge Agreement are
effective to create in favor of the Collateral Agent for the
benefit of the Company, a valid and perfected security
interest under the New York Uniform Commercial Code as in
effect on the date hereof in the State of New York in the
Pledged Securities from time to time credited to the
Collateral Account;
(vii) The Notes have been duly authorized, executed
and delivered by JES and, assuming due authentication thereof
by the Trustee, and upon payment and delivery in accordance
with Underwriting Agreement, will constitute valid and legally
binding obligations of JES enforceable against JES in
accordance with their terms and entitled to the benefits of
the Indenture; assuming the Guarantees relating to the Notes
have been duly authorized, endorsed on the Notes and executed,
issued and delivered in accordance with Canadian law, the
Guarantees will constitute valid and legally binding
obligations of the Company enforceable in accordance with
their terms and entitled to the benefits of the Indenture; and
the Notes, such Guarantees and the Indenture conform to the
descriptions thereof in the Prospectus;
(viii) The Indenture has been duly authorized,
executed and delivered by XXX and duly qualified under the
Trust Indenture Act and,
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assuming the due authorization, execution and delivery thereof
by the Company and the Trustee (other than Section 516 thereof
as to which such counsel need not express any opinion),
constitutes a valid and legally binding instrument of JES and
the Company enforceable in accordance with its terms;
(ix) Assuming that the Units have been duly
authorized, executed and delivered by the Company and,
assuming due execution by the Purchase Contract Agent as
attorney-in-fact of the holders thereof and due authentication
by the Purchase Contract Agent and upon payment and delivery
in accordance with the Underwriting Agreement, the Units will
constitute valid and legally binding obligations of the
Company entitled to the benefits of the Purchase Contract
Agreement and enforceable against the Company in accordance
with their terms;
(x) The issuance and sale of the Units and the
compliance by the Company and JES with all of the provisions
of the Underwriting Agreement will not breach or result in a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument filed as an exhibit
to the Registration Statement or any document or filing
incorporated by reference therein to which the Company or any
of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is
subject, nor will such action violate the charter documents,
as amended, or the By-laws of JES or, with respect to the
United States and the States of New York and Indiana, will
such action result in any violation of any statute or, to the
knowledge of such counsel, any order, rule or regulation of
any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their
properties;
(xi) With respect to the United States and the States
of New York and Indiana, no consent, approval, authorization,
order, registration or qualification of or with any such court
or governmental agency or body is required for the issue and
the sale of the Units, and the compliance by the Company and
JES with all of the provisions of the Underwriting Agreement,
except such that have been obtained or made under the Act, the
Trust Indenture Act and the Exchange Act, and such consents,
approvals, authorizations, registrations or qualifications as
may be required under state securities, or Blue Sky laws in
connection with the purchase and distribution of the Units by
the Underwriters;
-15-
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(xii) Neither the Company or JES is an "investment
company", as such term is defined in the Investment Company
Act of 1940, as amended;
(xiii) Such counsel does not know of any contracts or
other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus or required to
be described in the Registration Statement or in the
Prospectus which are not filed or incorporated by reference or
described as required;
(xiv) Subject to the qualifications and limitations
stated in the Prospectus, the statements set forth in the
Prospectus under the caption "United States Federal Income Tax
Consequences," insofar as they purport to constitute summaries
of matters of United States federal tax law and regulations or
legal conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material
respects; and
(xv) Such opinion may also include a paragraph to the
effect that such counsel has not independently verified the
accuracy, completeness or fairness of the statements made or
included in the Registration Statements, the Prospectus and
the documents incorporated by reference in the Prospectus and
that such counsel takes no responsibility therefor; provided,
however, that such opinion shall state that the discussion set
forth in the Prospectus under the heading "Certain Federal
Income Tax Consequences", insofar as it relates to matters of
United States federal income tax law, is accurate in all
material respects. Such opinion may also state that in the
course of the preparation by the Company of the Registration
Statement and the Prospectus, such counsel participated in
conferences with certain officers and employees of the Company
and with representatives of the independent accountants of the
Company. Such opinion may state that such counsel did not
prepare the documents incorporated by reference in the
Prospectus; however, such counsel discussed such documents
with the Company prior to their filing with the Commission,
and that based upon such counsel's examination of the
Registration Statement, the Prospectus and the documents
incorporated by reference in the Prospectus, such counsel's
investigations made in connection with the preparation of the
Registration Statement and the Prospectus and such counsel's
participation in the conferences referred to above, (i) such
counsel is of the opinion that the Registration Statement and
any amendment thereto made by the Company made prior to such
Time of Delivery, as of its respective effective date, and the
Prospectus
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and any amendment or supplement thereto made by the Company
prior to such Time of Delivery, as of their respective issue
dates, complied as to form in all material respects with the
requirements of the Act and the applicable rules and
regulations of the Commission thereunder, and (ii) such
counsel has no reason to believe that the Registration
Statement or any amendment thereto (including the documents
incorporated by reference in the Prospectus), made by the
Company prior to such Time of Delivery , as of its respective
effective date, contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein, or required in order to make the statements
therein not misleading, or that as of such Time of Delivery,
either the Registration Statement or the Prospectus or any
amendment or supplement thereto made by the Company prior to
such Time of Delivery (including the documents incorporated by
reference therein), contain any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances in which the
statements were made when such documents were so filed, not
misleading, except that in each case such counsel need express
no opinion with respect to the financial statements or other
financial data contained or incorporated by reference in the
Registration Statement or any amendment thereto, or in the
Prospectus and any amendment or supplement thereto made by the
Company prior to such Time of Delivery.
(e) Xxxxxxx Xxxxxxxx & Xxxxxxxx S.E.N.C., Canadian counsel for
the Company, shall have furnished to you their written opinion, dated
the Time of Delivery, in form and substance satisfactory to you (such
counsel being entitled to rely, as to all matters of United States or
United States state law, solely upon the opinion of United States
counsel described in paragraph (d) of this Section 6) (such counsel
also being entitled to rely in respect of matters of law other than
matters of Canadian federal or Quebec law solely upon opinions of local
counsel and as to matters of fact upon certificates of officers of the
Company or its subsidiaries, provided that such counsel shall state
that they believe both they and you are justified in relying thereon)
to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of Canada
with corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and has
received a certificate of compliance under the Canada Business
Corporations Act;
(ii) The Company has been duly qualified for the
transaction of business under the laws of the Province of
Quebec;
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(iii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued common
shares of the Company have been duly and validly authorized
and issued and are fully paid and non-assessable; and the
common shares conform to the description of the share capital
contained in the Prospectus;
(iv) To the best of such counsel's knowledge and
other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending in the
Province of Quebec to which the Company or any of its
subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject, which, if
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate be, in
the opinion of such counsel, material to the Company and its
subsidiaries taken as a whole; and to the best of such
counsel's knowledge, no such proceedings have been threatened
by governmental authorities or by others;
(v) Each of this Agreement, the Purchase Contract
Agreement, the Purchase Contracts, the Pledge Agreement and
the Indenture, has been duly authorized, executed and
delivered by the Company;
(vi) The Guarantees have been duly authorized, duly
endorsed on the Notes and executed, and upon the due
execution, authentication, issuance and delivery of the Notes
pursuant to this Agreement and the Indenture, such Guarantees
have been duly issued and delivered; the Guarantees of the
Notes when endorsed on the Notes and executed, and upon the
execution, authentication, issuance and delivery of the Notes
pursuant to the Indenture; and, assuming that the Guarantees
of the Notes constitute valid and legally binding obligations
of the Company enforceable in accordance with their terms
under the laws of the State of New York, such Guarantees will
constitute valid and legally binding obligations of the
Company under the laws of the Province of Quebec and the laws
of Canada applicable therein, subject, as to enforcement, to
general principles of equity or principles to substantially
the same effect in civil law to bankruptcy, insolvency,
reorganization, moratorium and other laws relating to
affecting creditors' rights generally, subject to the
qualification that specific performance and injunction are
remedies which are available only in the discretion of the
court before which any proceedings therefor may be brought,
subject to the provisions of the Currency Act (Canada), which
preclude a court in Canada from giving a judgment in a
currency other than Canadian currency and subject to the
provisions of the Criminal Code (Canada) which preclude the
enforcement
-18-
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of any obligation to pay interest at an effective annual rate
of interest that exceeds 60%;
(vii) The Indenture has been duly authorized,
executed and delivered by the Company and, assuming that the
Indenture has been duly authorized, executed and delivered by
JES and is binding on JES, and assuming that the Indenture
constitutes a valid and legally binding instrument of the
Company enforceable in accordance with its terms under the
laws of the State of New York, the Indenture (other than
Section 516 thereof, as to which such counsel need express no
opinion) constitutes a valid and legally binding instrument of
the Company under the laws of the Province of Quebec and the
laws of Canada applicable therein, enforceable in accordance
with its terms under the laws of the Province of Quebec and
the laws of Canada applicable therein, subject, as to
enforcement, to general principles of equity or principles to
substantially the same effect in civil law, to bankruptcy,
insolvency, reorganization, moratorium and other laws relating
to or affecting creditors' rights generally, subject to the
qualification that specific performance and injunction are
remedies which are available only in the discretion of the
court before which any proceedings therefor may be brought,
subject to the provisions of the Currency Act (Canada), which
preclude a court in Canada from giving a judgment in a
currency other than Canadian currency and subject to the
provisions of the Criminal Code (Canada) which preclude the
enforcement of any obligation to pay interest at an effective
annual rate of interest that exceeds 60%; and all taxes and
fees required under the laws of Canada or the Province of
Quebec to be paid with respect to the execution of the
Indenture and the issuance of the Guarantees relating to the
Notes have been paid;
(viii) The Purchase Contract Agreement, the Pledge
Agreement and the Purchase Contracts have been duly
authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery by the
other parties thereto, and assuming that each such agreement
constitutes a valid and legally binding agreement of the
Company enforceable in accordance with its terms under the
laws of the State of New York, each of the Purchase Contract
Agreement, the Pledge Agreement and the Purchase Contracts
constitutes a valid and legally binding instrument of the
Company under the laws of the Province of Quebec; and the laws
of Canada applicable therein, subject, as to enforcement, to
general principles of equity or principles to substantially
the same effect in civil law, to bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or
affecting creditors' rights
-19-
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generally, subject to the qualification that specific
performance and injunction are remedies which are available
only in the discretion of the court before which any
proceedings therefor may be brought, subject to the provisions
of the Currency Act (Canada), which preclude a court in Canada
from giving a judgment in a currency other than Canadian
currency and subject to the provisions of the Criminal Code
(Canada) which preclude the enforcement of any obligation to
pay interest at an effective annual rate of interest that
exceeds 60%;
(ix) The entry into the Purchase Contracts by the
Company, the issuance of the Guarantees, the issue and sale of
the Common Shares by the Company pursuant to the Purchase
Contracts, the compliance by the Company with all of the
provisions of this Agreement, the Purchase Contracts, the
Purchase Contract Agreement, the Pledge Agreement, the
Indenture and the Guarantees, and the consummation of the
transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any
of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the
provisions of the Certificate of Amalgamation, as amended, or
the General By-Laws of the Company or, with respect to Canada
or the Province of Quebec (or, insofar as such orders are
concerned, any other Province thereof), any statute or, to the
knowledge of such counsel any order, rule or regulation of any
court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body of Canada or the Province of
Quebec is required for the entry into the Purchase Contracts
underlying the Units by the Company, the issue of the
Guarantees, the issue and sale of the Common Shares by the
Company pursuant to the Purchase Contracts, the compliance by
the Company with all of the provisions of this Agreement, the
Purchase Contracts, the Purchase Contract Agreement, the
Pledge Agreement, the Guarantees or the Indenture or the
consummation by the Company of the transactions herein or
therein contemplated, other than those which have been
obtained or made;
(x) No filing or registration of the Registration
Statements, any Preliminary Prospectus or the Prospectus is
necessary under the laws of
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Canada or the Province of Quebec in connection with the
Registration of the Notes;
(xi) No tax or stamp duty under the laws of Canada or
the Province of Quebec is payable in connection with the
creation, issue and delivery to the Underwriters of the Notes
and the Purchase Contracts, which are evidenced by the Units,
and the Guarantees;
(xii) Under the laws of Canada and of the Province of
Quebec currently in force and under current practice of the
courts of the Province of Quebec at the date of such opinion,
such courts would give effect to the choice of New York law as
the law governing this Agreement, the Purchase Contract
Agreement, the Purchase Contracts, the Guarantees, the
Indenture and the Pledge Agreement subject to proof of such
laws as a question of fact; provided that such choice of law
is bona fide (in the sense that it was not made with a view to
avoiding the consequences of the laws of any other
jurisdiction) and provided that such choice of law is not
contrary to public order, as that term is applied by the
courts in the Province of Quebec; and
(xiii) Any statements with respect to matters of
Canadian law and regulations set forth in the Prospectus are
accurate in all material respects. Such opinion shall also
state that (i) such counsel did not prepare the Registration
Statements, the Prospectus or any documents incorporated by
reference in the Prospectus and (ii) such counsel has no
reason to believe that any Registration Statement or any
amendment thereto (including the documents incorporated by
reference in the Prospectus), as of its respective effective
date (or, with respect to any Registration Statement as to
which an Annual Report on Form 10-K of the Company has been
filed subsequent to the effective date thereof and is deemed
to be incorporated by reference therein, as of the date of
filing o the most recent such Annual Report on Form 10-K)
(other than the financial statements and other financial and
statistical information contained therein, as to which such
counsel need express no belief) contained any untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make
the statements therein concerning the Company not misleading
or that the Prospectus or any amendment or supplement thereto
(including the documents incorporated by reference in the
Prospectus) contains any untrue statement of a material fact
or omits to state any material fact necessary in order to make
the statements therein, in the light of circumstances under
which they were made, not misleading.
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Such opinion shall also state that any final and conclusive
judgment obtained against the Company in the United States in respect
of this Agreement, would be recognized and enforced by the courts of
the Province of Quebec provided that (A) the United States court
rendering such judgment had jurisdiction over the Company, as
determined under the relevant provisions of the laws of the Province of
Quebec; (B) such judgment is not subject to ordinary remedies (such as
appeal or judicial review) and is final and enforceable in the United
States; (C) such judgment was not rendered in contravention of the
fundamental principles of procedure (such as notice of fair hearing,
right to be heard, right to an independent and impartial tribunal and
rules against bias); (D) there were no proceedings pending in the
Province of Quebec and no judgment rendered in the Province of Quebec
between the same parties, based on the same facts and having the same
object; (E) such judgment is not manifestly inconsistent with public
order as understood in international relations; (F) such judgment does
not enforce obligations arising from foreign revenue laws, unless there
is reciprocity, or arising from other laws of a public nature, such as
expropriatory or penal laws; (G) the action to enforce such judgment is
commenced in the Province of Quebec within three (3) years after the
date of such judgment; and (H) such judgment is not contrary to any
order made by the Attorney-General of Canada under the Foreign
Extra-territorial Measures Act (Canada) or by the Competition Tribunal
under the Competition Act (Canada);
(f) On the Remarketing Date, the Company shall have furnished
to the Remarketing Agent letters addressed to the Remarketing Agent and
dated such date, in form and substance satisfactory to the Remarketing
Agent, of PricewaterhouseCoopers, and KPMG Accountants N.V., containing
statements and information of the type ordinarily included in
accountants' "comfort letters" with respect to certain financial
information contained in the Prospectus and in the Remarketing
Materials.
(g) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and (ii) since the
respective dates as of which information is given in the Prospectus
there shall not have been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus, the
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effect of which, in any such case described in clause (i) or (ii), is
in your judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Units being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(h) Subsequent to the date hereof there shall not have
occurred any of the following: (i) a suspension or material limitation
in trading in securities generally on the NYSE; (ii) a general
moratorium on commercial banking activities in Canada or New York
declared by Canadian federal, Canadian Provincial, United States
federal or New York State authorities; (iii) a suspension or material
limitation in trading in the Company's common shares on the New York
Stock Exchange; or (iv) the outbreak or escalation of hostilities
involving the United States or Canada or the declaration by the United
States or Canada of a national emergency or war, if the effect of any
such event specified in this clause (iv) in your judgment makes it
impracticable or inadvisable to proceed with the Remarketing or the
delivery of the Units on the terms and in the manner contemplated in
the Prospectus;
(i) The Units to be sold by the Company at the Time of
Delivery shall have been duly listed, subject to notice of issuance, on
the NYSE;
(j) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(k) Each of the Company and JES shall have furnished or caused
to be furnished to you at such Time of Delivery certificates of
officers of the Company and JES, respectively, satisfactory to you as
to the accuracy of the representations and warranties of the Company
and JES, as applicable, herein at and as of such Time of Delivery, as
to the performance by the Company and JES shall have furnished or
caused to be furnished certificates as to the matters set forth in
subsections (a) and (i) above.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Remarketing Agent.
6. Indemnification and Contribution. (a) The Company and JES jointly
and severally will indemnify and hold harmless the Remarketing Agent against any
losses, claims, damages or liabilities, joint or several, to which the
Remarketing Agent may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or
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liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Remarketing Materials, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse the Remarketing Agent for any legal or other
expenses reasonably incurred by the Remarketing Agent in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company and JES shall 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 an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Remarketing Materials or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company and JES by the Remarketing Agent expressly
for use therein;
(b) The Remarketing Agent will indemnify and hold harmless the
Company and JES against any losses, claims, damages or liabilities to which the
Company or JES may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Remarketing Materials or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Marketing Materials
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company and JES by the expressly for use therein; and will reimburse the Company and JES for
any legal or other expenses reasonably incurred by the Company or JES in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled
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to participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (which shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. In no event shall the indemnifying party be liable for
the fees and expenses of more than one 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,
provided that this sentence shall not impair any right of an indemnified party
to be indemnified for its reasonable costs of investigation. An indemnifying
party shall not be liable for any settlement of any action or claim for monetary
damages which an indemnified party may effect without the indemnifying party's
consent, which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and JES on the one hand and the
Remarketing Agent on the other from the Remarketing. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (d) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and JES on the one hand and the Remarketing Agent on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and JES on the one hand and Remarketing Agent on the other shall
be deemed to be in the same proportion as shall be appropriate to reflect the
relative benefits received by the Company and JES on the one hand and the
Remarketing Agent on the other hand. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and JES on the one hand or the
Remarketing Agent on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The
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Company and JES and the Remarketing Agent agree that it would not be just and
equitable if contributions pursuant to this subsection (e) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (e), the Remarketing shall not be required to contribute any amount
in excess of the amount by which the total price at which the Units underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which Remarketing Agent has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
7. Resignation and Removal of the Remarketing Agent. The Remarketing
Agent may resign and be discharged from its duties and obligations hereunder,
and the Company may remove the Remarketing Agent, by giving 60 days' prior
written notice, in the case of a resignation, to JES, the Unit Agent, and the
Indenture Trustee and, in the case of a removal, the removed Remarketing Agent,
the Purchase Contract Agent, and the Trustee; provided however, that (i) the
Company may not remove the Remarketing Agent unless (A) the Remarketing Agent
becomes involved as a debtor in a bankruptcy, insolvency or similar proceeding,
(B) the Remarketing Agent shall not be among the 15 underwriters with the
largest volume underwritten in dollars, on a lead or co-managed basis, of U.S.
domestic debt securities during the twelve-month period ended as of the last
calendar quarter preceding the Remarketing Date or (C) the Remarketing Agent
shall be subject to one or more legal restrictions preventing the performance of
its obligations hereunder and (ii) no such resignation nor any such removal
shall become effective until the Company shall have appointed at least one
nationally recognized broker-dealer as successor Remarketing Agent and such
successor Remarketing Agent shall have entered into a with
the Company and JES in which it shall have agreed to conduct the Remarketing in
accordance with the Remarketing Procedures. In any such case, the Company will
use its reasonable efforts to appoint a successor Remarketing Agent and enter
into such a with such person as soon as reasonably
practicable. The provisions of Sections 4 and 7 shall survive the resignation or
removal of any Remarketing Agent pursuant to this Agreement.
8. Dealing in the Remarketed Notes. The Remarketing Agent, when acting
as a Remarketing Agent or in its individual or any other capacity, may, to the
extent permitted by law, buy, sell, hold and deal in any of the Remarketed
Notes. The
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Remarketing Agent may exercise any vote or join in any action which any
beneficial owner of Remarketed Notes may be entitled to exercise or take
pursuant to the Purchase Contract Agreement or the Indenture with like effect as
if it did not act in any capacity hereunder. The Remarketing Agent, in its
individual capacity, either as principal or agent, may also engage in or have an
interest in any financial or other transaction with the Company and JES as
freely as if it did not act in any capacity hereunder.
9. Remarketing Agent's Performance; Duty of Care. The duties and
obligations of the Remarketing Agent shall be determined solely by the express
provisions of this Agreement and the Purchase Contract Agreement and the
Indenture. No implied covenants or obligations of or against the Remarketing
Agent shall be read into this Agreement, the Purchase Contract Agreement or the
Indenture. In the absence of bad faith on the part of the Remarketing Agent, the
Remarketing Agent may conclusively rely upon any document furnished to it, which
purports to conform to the requirements of this Agreement, the Purchase Contract
Agreement or the Indenture as to the truth of the statements expressed in any of
such documents. The Remarketing Agent shall be protected in acting upon any
document or communication reasonably believed by it to have been signed,
presented or made by the proper party or parties. The Remarketing Agent, acting
under this Agreement, shall incur no liability to the Company or to any holder
of Remarketed Notes in its individual capacity or as Remarketing Agent for any
action or failure to act, on its part in connection with a Remarketing or
otherwise, except if such liability is judicially determined to have resulted
from the gross negligence or willful misconduct on its part.
10. Termination. This Agreement shall terminate as to the Remarketing
Agent on the effective date of the resignation or removal of the Remarketing
Agent pursuant to Section 8. In addition, the obligations of the Remarketing
Agent hereunder may be terminated by it by notice given to the Company prior to
10:00 A.M., New York City time, on the Remarketing Date if, prior to that time,
any of the events described in Sections 5(g), (h), (i) OR (j) shall have
occurred.
11. Notices. All statements, requests, notices and agreements hereunder
shall be in writing, and: (a) if to the Remarketing Agent, shall be delivered or
sent by mail, telex or facsimile transmission to _____________,
________________, New York, New York _______, Attention: BONY (Fax: (212)
________________);
(b) if to the Company and JES shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in the
Prospectus, Attention: ___________. (Fax: ____________________).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
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12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Remarketing Agent, the Company,
JES, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(x) the representations, warranties, indemnities and agreements of the Company
and JES contained in this Agreement shall also be deemed to be for the benefit
of the officers and employees of the Remarketing Agent and the person or
persons, if any, who control the Remarketing Agent within the meaning of Section
15 of the Securities Act and (y) the indemnity agreement of the Remarketing
Agent contained in Section 7(b) of this Agreement shall be deemed to be for the
benefit of directors, officers and employees of the Company and JES and any
person controlling the Company and JES within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to herein, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
13. Survival. The respective indemnities, representations, warranties
and agreements of the Company and JES and the Remarketing Agent contained in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the Remarketing and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any of them or
any person controlling any of them.
14. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 under the Securities Act.
15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF NEW YORK.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement among the Company,
JES and the Remarketing Agent, please indicate your acceptance in the space
provided for that purpose below.
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Very truly yours,
THE SEAGRAM COMPANY LTD.
By:__________________________
Name:
Title:
XXXXXX X. XXXXXXX & SONS, INC.
By:__________________________
Name:
Title:
Accepted:
[NAME OF REMARKETING AGENT]
By:____________________________
Authorized Representative
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