Exhibit 1.2
between
FRONTIER CORPORATION
and
X.X. XXXXXX SECURITIES INC.
as Remarketing Dealer
TABLE OF CONTENTS
Page
----
Section 1. Definitions.............................................. 2
Section 2. Representations and Warranties........................... 6
Section 3. Covenants of the Company................................. 7
Section 4. Appointment and Obligations of the Remarketing Dealer....10
Section 5. Fees and Expenses........................................14
Section 6. Resignation of the Remarketing Dealer....................14
Section 7. Dealing in the Drs.; Purchase of Drs. by the Company.....14
Section 8. Conditions to Remarketing Dealer's Obligations...........15
Section 9. Indemnification..........................................18
Section 10. Termination of ....................22
Section 11. Remarketing Dealer's Performance; Duty of Care..........23
Section 12. Governing Law...........................................24
Section 13. Term of Agreement.......................................24
Section 14. Successors and Assigns..................................24
Section 15. Headings................................................24
Section 16. Severability............................................25
Section 17. Counterparts............................................25
Section 18. Amendments; Waivers.....................................25
Section 19. Notices.................................................25
dated as of September 21, 1998 (the "Agreement")
between Frontier Corporation, a New York business corporation (the "Company"),
and X.X. Xxxxxx Securities Inc. ("JPMSI" and, in its capacity as the remarketing
dealer hereunder, the "Remarketing Dealer").
WHEREAS, the Company has issued $200,000,000 aggregate principal amount of
its 6% Dealer remarketable securities/SM/("Drs."/SM/) pursuant to an Indenture
dated as of May 21, 1997, as supplemented as of December 8, 1997 (the
"Indenture"), from the Company to The Chase Manhattan Bank, as trustee (the
"Trustee"); and
WHEREAS, the Drs. are being sold initially pursuant to an Underwriting
Agreement dated as of September 16, 1998 (the "Underwriting Agreement") between
the Company and JPMSI, as Representative of the Underwriters named in Schedule
II thereto; and
WHEREAS, the Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 33-64307) under the Securities
Act of 1933, as amended (the "Securities Act"), in connection with the offering
of debt and equity securities, including the Drs., which registration statement
was declared effective by order of the Commission, and has filed such amendments
thereto and such amended or supplemented prospectuses as may have been required
to the date hereof, and will file such additional amendments and supplements
thereto and such additional amended or supplemented prospectuses as may
hereafter be required (such registration statement, including any amendments and
supplements thereto, and all documents incorporated therein by reference, as
from time to time amended or supplemented pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), the Securities Act, or otherwise,
are referred to herein as the "Registration Statement"); all preliminary and
final prospectuses relating to such Registration Statement used in connection
with the offering of Drs., including the documents incorporated by reference
therein, are referred to herein collectively as the "Prospectus"; provided that,
if any new or revised prospectus shall be provided to the Remarketing Dealer by
the Company for use in connection with the remarketing of the Drs. which differs
from the Prospectus filed with the Commission at the time of the initial
issuance of the Drs. (whether or not such revised prospectus is required to be
filed by the Company pursuant to Rule 424(b) under the Securities Act), the term
"Prospectus" shall refer to such new or revised prospectus from and after the
time it is first provided to the Remarketing Dealer
---------------------------
/SM/"Dealer remarketable securities/SM/" and "Drs./SM/" are service marks
of X.X. Xxxxxx Securities Inc.
for such use, and "Registration Statement" shall refer to the Registration
Statement as deemed amended by the prospectus so provided or any new
registration statement of which such prospectus is a part; and
WHEREAS, JPMSI is prepared to act as the Remarketing Dealer with respect to
the remarketing of the Drs. on October 15, 2003 (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:
Section 1. Definitions.
(a) The following terms have the following meanings:
"Base Rate" means 6% per annum.
"Business Day" means any day other than a Saturday or Sunday or other day
on which banking institutions in the City of New York are authorized or
obligated by law, executive order or governmental decree to be closed.
"Call Price" means, with respect to any Drs. Unavailable for Remarketing:
(i) if the Remarketing Dealer's request for a Call Price payment is
made prior to the Determination Date, the Commercially Reasonable Option
Value for the Drs. Unavailable for Remarketing on the date of such request;
or
(ii) if the Remarketing Dealer's request for a Call Price payment is
made on or after the Determination Date, an amount (if positive) equal to:
Full Option Settlement Value x Drs. Unavailable for Remarketing
----------------------------------------------------------------
Original Amount of Drs.
where "Original Amount of Drs." means the aggregate principal amount of the
Drs. issued by the Company on the date hereof; and "Full Option Settlement
Value" equals the Dollar Price less the Original Amount of Drs.
"Commercially Reasonable Option Value" means, with respect to any Drs.
Unavailable for Remarketing, on any date, the amount determined by the
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Remarketing Dealer on such date under Section 6(e) of the ISDA Master Agreement
on a "Market Quotation" basis in respect of the embedded interest rate option
implicit in the Remarketing Dealer's option to purchase, at 100% of the
aggregate principal amount thereof, the Drs. Unavailable for Remarketing as if a
"Termination Event" had occurred on such date under such interest rate option
with respect to the Company under the ISDA Master Agreement and the Company was
the "Affected Party". The determination of the Commercially Reasonable Option
Value shall be made using the provisions of the ISDA Master Agreement regardless
of any termination of the ISDA Master Agreement.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Remarketing Dealer as having an actual maturity on the
Determination Date (or the United States Treasury securities selected by the
Remarketing Dealer to derive an interpolated yield to maturity on such
Determination Date) comparable to the remaining term of the Drs.
"Comparable Treasury Price" means (a) the offer price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) on the
Determination Date, as set forth on Telerate Page 500, adjusted to reflect
settlement on the Remarketing Date if prices quoted on Telerate Page 500 are for
settlement on any date other than the Remarketing Date, or (b) if such page (or
any successor page) is not displayed or does not contain such offer prices on
such Business Day, then (i) the average of such Reference Treasury Dealer
Quotations for such Remarketing Date, after excluding the highest and lowest of
such Reference Treasury Dealer Quotations (unless there is more than one highest
or lowest quotation, in which case only one such highest and/or lowest quotation
shall be excluded), or (ii) if the Remarketing Dealer obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such Reference
Treasury Dealer Quotations. The Remarketing Dealer shall have the discretion to
select the time at which the Comparable Treasury Price is determined on the
Determination Date and the number of Reference Treasury Dealer Quotations to be
obtained.
"Dollar Price" means the discounted present value to the Remarketing Date of
the cash flows on a bond (x) with a principal amount equal to the aggregate
principal amount of the initially issued Drs., (y) maturing on the Stated
Maturity Date and (z) bearing interest from the Remarketing Date, payable semi-
annually (assuming a 360-day year consisting of twelve 30-day months) on the
interest payment dates of the Drs. at a rate equal to the Base Rate, using a
discount rate equal to the Treasury Rate.
"Drs. Unavailable for Remarketing" means any Drs. that are unavailable for
any reason for remarketing by the Remarketing Dealer on the Remarketing Date
(whether due to termination of this Agreement according to its terms,
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purchase or redemption of Drs. by the Company prior to the Remarketing Date, or
otherwise).
"ISDA Master Agreement" means the ISDA Master Agreement dated as of December
15, 1997 between the Company and Xxxxxx Guaranty Trust Company of New York.
"Reference Corporate Dealer" means X.X. Xxxxxx Securities Inc., and four
other leading dealers of publicly-traded debt securities of the Company to be
chosen by the Remarketing Dealer. If any of such persons shall cease to be a
leading dealer of publicly-traded debt securities of the Company, then the
Remarketing Dealer may replace such person with any other leading dealer of
publicly-traded debt securities of the Company.
"Reference Treasury Dealer" means a primary U.S. Government securities
dealer in The City of New York (which may include the Remarketing Dealer)
selected by the Remarketing Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer, the offer price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) for settlement on the Remarketing Date,
quoted in writing to the Remarketing Dealer by such Reference Treasury Dealer by
3:30 p.m., New York City time, on the Determination Date.
"Stated Maturity Date" means October 15, 2013.
"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
clause (a) of the definition of Comparable Treasury Price as may replace Dow
Xxxxx Markets Limited.
"Treasury Rate" means the annual rate equal to the semi-annual equivalent
yield to maturity or interpolated (on a 30/360 day count basis) yield to
maturity on the Determination Date of the Comparable Treasury Issue for value on
the Remarketing Date, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price.
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(b) The following additional terms are defined in the following Sections:
Defined Term Section
------------- --------
Commission Preamble
Company Preamble
Determination Date 4(d)
Drs. Preamble
DTC 4(e)
Exchange Act Preamble
Exchange Act Documents 2(a)
Indemnified Person 9(c)
Indemnifying Person 9(c)
Indenture Preamble
Interest Rate to Maturity 4(d)
Investment Grade 8(c)
JPMSI Preamble
Xxxxx'x 8(c)
Notification Date 4(c)
Prospectus Preamble
Rating Agency 8(c)
Registration Statement Preamble
Remarketing Date Preamble
Remarketing Dealer Preamble
Remarketing Materials 3(b)
Representation Date 2(a)
S&P 8(c)
Securities Act Preamble
Trustee Preamble
Underwriting Agreement Preamble
Section 2. Representations and Warranties.
(a) The Company represents and warrants to the Remarketing Dealer as of the
date hereof, the Notification Date, the Determination Date and the Remarketing
Date (each of the foregoing dates being hereinafter referred to as a
"Representation Date"), as follows:
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(i) It has filed 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 (collectively, the
"Exchange Act Documents").
(ii) The applicable Remarketing Materials will not, as of their date or
the Remarketing Date, include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(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 each Representation Date; except that for
purposes of this Agreement, representations and warranties in the
Underwriting Agreement relating to the Registration Statement and the
Prospectus (as defined therein) shall be made with respect to such documents
as deemed modified by the Exchange Act Documents, as well as any new or
revised registration statement and new or revised prospectus required by
subsection 3(f) herein, and the date as of which such representations and
warranties are made shall include each Representation Date.
(iv) Since the respective dates as of which information is given in the
Remarketing Materials or the Exchange Act Documents, there has not been any
material change in the capital stock or long-term debt of the Company or any
of its subsidiaries, or any material adverse change, or any development
involving a prospective material adverse change that is reasonably likely to
occur, in or affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Remarketing Materials or the Exchange Act Documents.
Except as set forth or contemplated in the Remarketing Materials or the
Exchange Act Documents, 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.
(v) This Agreement has been duly authorized, executed and delivered by
the Company.
(vi) The issue and sale of the Drs. and the performance by the Company
of all of its obligations under the Drs., the Indenture and this
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Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach 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 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 any
such action result in any violation of the provisions of the Certificate of
Incorporation or the By-Laws of the Company 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 subsidiaries or any of their
respective properties. No consent, approval, authorization, order, license,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Drs. or the
consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except such as have already been obtained and
except as may be required under the blue sky laws of any jurisdiction.
(vii) The Drs. conform in all material respects to the description
thereof contained in the Prospectus.
(b) Additional Certifications. Any certificate signed by any director or
officer of the Company in their capacity as such director or officer and
delivered to the Remarketing Dealer or to counsel for the Remarketing Dealer in
connection with the remarketing of the Drs. 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 the occurrence:
(i) at any time, of any event set forth in clause (i), (ii) or (iii) of
subsection 8(c) or of any amendment of any kind to the Indenture (including
the Drs.); and
(ii) on or after the Notification Date, of any event set forth in
clauses (i) or (ii) of subsection 8(d).
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(b) The Company will furnish to the Remarketing Dealer upon request:
(i) each Registration Statement and the Prospectus relating to the Drs.
(including in each case any amendment or supplement thereto and each
document incorporated therein by reference);
(ii) each Exchange Act Document filed after the date hereof; and
(iii) such other information relating to the Company and the Drs. as
the Remarketing Dealer may reasonably request from time to time for use in
connection with the remarketing of the Drs.
The Company agrees to provide the Remarketing Dealer with as many copies of
the foregoing written materials and information (collectively, the "Remarketing
Materials", including in each case any document incorporated by reference
therein) as the Remarketing Dealer may reasonably request for use in connection
with the remarketing of Drs. and consents to the use thereof for such purpose.
(c) If, at any time within three months of the Remarketing Date, any event
or condition known to the Company relating to or affecting the Company, any
subsidiary thereof or the Drs. shall occur which could reasonably be expected to
cause any of 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 Drs. are outstanding, the Company will file all
documents required to be filed with the Commission pursuant to the Exchange Act
within the time periods required by the Exchange Act and the rules and
regulations thereunder.
(e) The Company will comply with the Securities Act, the Exchange Act, the
Trust Indenture Act and the rules and regulations of the Commission thereunder
so as to permit the completion of the remarketing of the Drs. as contemplated in
(i) this Agreement, (ii the Prospectus first used to confirm sales of the Drs.
when the Drs. were originally issued, and (ii the prospectus, if any, used in
connection with the remarketing.
(f) If a new or amended Registration Statement in respect of the Drs. is
in the opinion of counsel for the Remarketing Dealer or for the Company
necessary to sell Drs. on an unrestricted basis on the Remarketing Date, then
the Company, at its expense, will, on or before such date:
8
(i) prepare and file with the Commission such amended or new
Registration Statement (including a Prospectus) covering such sale of Drs.
by the Remarketing Dealer, and use its best efforts to cause such
Registration Statement to become effective on or prior to the Determination
Date;
(ii) furnish to the Remarketing Dealer such number of copies of such
Prospectus as the Remarketing Dealer may reasonably request;
(iii) furnish to the Remarketing Dealer and any other securities dealer
participating in the remarketing of the Drs. an officers' certificate, an
opinion, including a statement as to the absence of material misstatements
in or omissions from the Registration Statement and the Prospectus, of
Jaffe, Raitt, Heuer & Xxxxx or such other counsel to the Company reasonably
satisfactory to the Remarketing Dealer and a "comfort letter" from the
Company's independent accountants, in each case dated as of the Remarketing
Date and in form and substance satisfactory to the Remarketing Dealer, of
the same tenor as the officers' certificate, opinion and comfort letter,
respectively, delivered to satisfy the closing conditions of the
Underwriting Agreement, but modified to relate to such new or amended
Registration Statement and the Prospectus; and
(iv) provide to the Remarketing Dealer and any other securities dealer
participating in the remarketing of the Drs. the opportunity to conduct an
underwriters' due diligence investigation of the Company in a scope
customarily provided in connection with a public offering of the Company's
debt securities.
The Remarketing Dealer will use its best efforts to advise the Company,
promptly upon request, whether in the opinion of counsel for the Remarketing
Dealer, a new or amended Registration Statement in respect of the Drs. is
necessary to sell Drs. on an unrestricted basis. In addition, the Remarketing
Dealer will use its best efforts to advise the Company promptly of any change in
the opinion of such counsel. Furthermore, if at any time when, in the
reasonable opinion of counsel for the Remarketing Dealer, a prospectus is
required by the Securities Act to be delivered in connection with sales of the
Drs., any event shall occur or condition shall exist as a result of which it is
necessary to amend the Registration Statement or amend or supplement the
Prospectus in order that such Prospectus will not include any untrue statement
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 is necessary to amend or
supplement the Prospectus to comply with law, the Company, at its expense, will
promptly furnish to the Remarketing Dealer such
9
amendments or supplements to the Prospectus as may be needed so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
The Company agrees to reimburse the Remarketing Dealer for all of its
reasonable out-of-pocket expenses (including reasonable fees and disbursements
of counsel) incurred in connection with any remarketing under circumstances
described in this subsection 3(f).
(g) The Company agrees that neither it nor any of its subsidiaries or
affiliates shall purchase or otherwise acquire, or enter into any agreement to
purchase or otherwise acquire, any of the Drs. on or prior to the Remarketing
Date, other than (i) a repurchase of the Drs. in accordance with subsection 4(g)
or (ii) a redemption of the Drs. in accordance with subsection 4(h).
(h) The Company will comply with each of the covenants set forth in the
Underwriting Agreement.
(i) In connection with the remarketing, the Company will endeavor to
arrange for the qualification of the Drs. for sale under the laws of such United
States jurisdictions as the Remarketing Dealer may designate, and will maintain
such qualifications in effect so long as required for the remarketing of the
Drs. provided, however, that the Company shall not be required to (i) file a
general consent to service of process in any jurisdiction, (ii) make any
undertaking with respect to the conduct of its business, (iii) take any action
that would subject the Company to taxation or (iv) provide any undertaking or
make any change in its charter or by-laws that the Board of Directors of the
Company reasonably determines to be contrary to the best interests of the
Company and its stockholders; the Company will pay all expenses in connection
with such qualification, including the fees and disbursements of counsel for any
dealers participating in the remarketing in connection with such qualification
and in connection with blue sky and legal investment surveys.
(j) During the five Business Day period ending on the Remarketing Date,
the Company will not, without the consent of the Remarketing Dealer, offer, sell
or contract to sell, or otherwise dispose of, directly or indirectly, or
announce the offering of, any debt securities.
Section 4. Appointment and Obligations of the Remarketing Dealer.
(a) Unless this Agreement is otherwise terminated in accordance with
Section 10 hereof, the Company hereby appoints JPMSI, and JPMSI hereby
10
accepts such appointment, in accordance with the terms but subject to the
conditions of this Agreement, as the exclusive Remarketing Dealer with respect
to the Drs.
(b) The obligations of the Remarketing Dealer hereunder to purchase the
tendered Drs. on the Remarketing Date, to determine the Interest Rate to
Maturity pursuant to subsection 4(d) and to remarket the Drs. are conditioned
on:
(i) the issuance and delivery of such Drs. pursuant to the terms and
conditions of the Underwriting Agreement;
(ii) the Remarketing Dealer's election on the Notification Date to
purchase the Drs. for remarketing on the Remarketing Date and
(iii) the fact that the conditions set forth in Section 8 hereof shall
have been fully and completely met to the satisfaction of the Remarketing
Dealer.
(c) On a Business Day not later than five Business Days prior to the
Remarketing Date (the "Notification Date"), the Remarketing Dealer will notify
the Company and the Trustee as to whether it elects to purchase the Drs. on the
Remarketing Date. If, and only if, the Remarketing Dealer so elects, the Drs.
shall be subject to mandatory tender to the Remarketing Dealer for purchase and
remarketing on the Remarketing Date, upon the terms and subject to the
conditions described herein. The purchase price of the Drs. shall be equal to
100% of the principal amount thereof.
(d) The Remarketing Dealer shall determine a new stated interest rate on
the Drs. as of the Remarketing Date (the "Interest Rate to Maturity") on the
third Business Day immediately preceding the Remarketing Date (the
"Determination Date") by soliciting by 3:30 p.m., New York City time, the
Reference Corporate Dealers for firm, committed bids to purchase all outstanding
Drs. at the Dollar Price, and by selecting the lowest such firm, committed bid
(regardless of whether each of the Reference Corporate Dealers actually submits
a bid). Each bid shall be expressed in terms of the Interest Rate to Maturity
that the Drs. would bear (quoted as a spread over the Base Rate) based on the
following assumptions:
(i) the Drs. would be sold to such Reference Corporate Dealer on the
Remarketing Date for settlement on the same day;
(ii) the Drs. would mature on the Stated Maturity Date;
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(iii) the Drs. would bear interest from the Remarketing Date at a
stated rate equal to the Interest Rate to Maturity bid by such Reference
Corporate Dealer, payable semi-annually on the interest payment dates for
the Drs.
The Interest Rate to Maturity announced by the Remarketing Dealer as a result of
such process will be quoted to the nearest one hundred-thousandth (0.00001) of
one percent per annum and, absent manifest error, will be binding and conclusive
upon holders of the Drs., the Company and the Trustee. Subject only to
subsection 4, below, the Remarketing Dealer shall have the discretion to select
the time at which the Interest Rate to Maturity is determined on the
Determination Date.
The Remarketing Dealer shall have the right in its sole discretion to
either (i) remarket the Drs. for its own account or (ii) sell the Drs. to the
Reference Corporate Dealer submitting the lowest firm, committed, bid pursuant
to subsection 4(d). If two or more Reference Corporate Dealers submit
equivalent bids which constitute the lowest firm, committed bid, the Remarketing
Dealer may in its sole discretion elect to sell the Drs. to any such Reference
Corporate Dealer.
(e) If the Remarketing Dealer has elected to remarket the Drs. as provided
in subsections 4(c) and 4(d), then it shall notify the Company, the Trustee and
The Depository Trust Company ("DTC") by telephone, confirmed in writing (which
may include facsimile or other electronic transmission), by 5:00 p.m., New York
City time, on the Determination Date of the Interest Rate to Maturity applicable
to the Drs. effective from and including the Remarketing Date.
(f) If the Drs. are remarketed as provided herein, then, subject to
Section 8 hereof, the Remarketing Dealer will make, or cause the Trustee to
make, payment to DTC by the close of business on the Remarketing Date against
delivery through DTC of the tendered Drs., of the purchase price for all of the
tendered Drs. The purchase price of the tendered Drs. will be equal to 100% of
the principal amount thereof and shall be paid in immediately available funds.
(g) If the Remarketing Dealer (i) does not elect to purchase the Drs. for
remarketing pursuant to subsection 4(c), (ii determines in its sole discretion
that one or more of the conditions in Section 8 hereof have not been fulfilled
by the required time, or (iii) for any other reason does not remarket the Drs.,
then the Company shall repurchase on the Remarketing Date all then outstanding
Drs. at a price equal to 100% of the principal amount of such Drs. plus all
accrued interest, if any, on such Drs. to (but excluding) the Remarketing Date.
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(h) If the Remarketing Dealer has elected to remarket the Drs. on the
Remarketing Date in accordance with subsection 4(c) hereof, the Company may
irrevocably elect to exercise its right to redeem the Drs., in whole but not in
part, from the Remarketing Dealer on the Remarketing Date at the greater of (x)
100% of the aggregate principal amount of the Drs. or (y) the Dollar Price, by
giving notice of such election to the Remarketing Dealer no later than
(i) the Business Day immediately prior to the Determination Date or
(ii) if fewer than three Reference Corporate Dealers submit firm,
committed bids in accordance with subsection 4(d) hereof, immediately after
the deadline set by the Remarketing Dealer for receiving such bids has
passed.
In either such case, the Company shall pay such redemption price for the
Drs. in same-day funds by wire transfer on the Remarketing Date to an account
designated by the Remarketing Dealer.
If the Company exercises its right to redeem the Drs. pursuant to clause
4(h)(ii) above, it shall promptly reimburse the Remarketing Dealer for any and
all expenses (including any and all hedge losses) incurred by the Remarketing
Dealer in connection with its having to break associated hedging transactions to
enable the Company to exercise such redemption right. If any such broken xxxxxx
result in a profit to the Remarketing Dealer, the Remarketing Dealer shall
promptly pay such profit over to the Company. The amount of any hedge losses or
profits shall be determined solely by the Remarketing Dealer, on a reasonable
basis.
(i) In accordance with the terms and provisions of the Drs., the tender
and settlement procedures set forth in this Section 4, shall be subject to
modification without the consent of the holders of the Drs., to the extent
required by DTC or, if the book-entry system is no longer available for the Drs.
at the time of the remarketing, to the extent required to facilitate the
tendering and remarketing of Drs. in certificated form. In addition, the
Remarketing Dealer may, without the consent of the holders of the Drs., modify
the settlement procedures set forth in the Indenture and/or the Drs. in order to
facilitate the settlement process.
(j) In accordance with the terms and provisions of the Drs., the Company
hereby (i) agrees that at all times, it will use its best efforts to maintain
the Drs. in book-entry form with DTC or any successor thereto and to appoint a
successor depositary to the extent necessary to maintain the Drs. in book-entry
13
form and (ii) waives any discretionary right it otherwise may have under the
Indenture to cause the Drs. to be issued in certificated form.
Section 5. Fees and Expenses.
Subject to subsection 3(f), the last paragraph of subsection 4(h), and
Section 10 hereof, the Remarketing Dealer will not receive any fees or
reimbursement of expenses from the Company for its remarketing services set
forth herein.
Section 6. Resignation of the Remarketing Dealer.
The Remarketing Dealer may resign and be discharged from its duties and
obligations hereunder at any time prior to its giving notice of its intention to
remarket the Drs., such resignation to be effective ten Business 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 subsection 10 hereof. The
Company shall have the right, but not the obligation, to appoint a successor
Remarketing Dealer.
Section 7. Dealing in the Drs.; Purchase of Drs. by the Company.
(a) JPMSI, 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 Drs. JPMSI, as holder or beneficial owner of the Drs., 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 Drs. 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 Drs. in the remarketing, provided that the
Interest Rate to Maturity established with respect to Drs. in the remarketing is
not different from the Interest Rate to Maturity that would have been
established if the Company had not purchased such Drs.
Section 8. Conditions to Remarketing Dealer's Obligations.
The obligations of the Remarketing Dealer to purchase the Drs. on the
Remarketing Date in accordance with the provisions of this Agreement, to
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determine the Interest Rate to Maturity pursuant to subsection 4(d), and to
remarket the Drs. have been undertaken in reliance on, and are subject to, the
following conditions:
(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 as of the dates
specified therein of the representations and warranties contained in, the
Underwriting Agreement;
(c) none of the following events shall have occurred at any time on or
prior to the Remarketing Date:
(i) the Drs. shall cease to be rated Investment Grade by each of the
Rating Agencies at any time; for purposes of the foregoing, "Rating Agency"
shall mean Standard & Poor's Corporation and its successors ("S&P") and
Xxxxx'x Investor's Services, Inc. and its successors ("Xxxxx'x"); and
"Investment Grade" shall mean that the Company's long-term, unsecured debt
is rated BBB- or higher by S&P and Baa3 or higher by Xxxxx'x;
(ii) 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 thereunder, with respect to the Drs. shall
have occurred and be continuing;
(iii) an Event of Default or a Termination Event, each as defined in
the ISDA Master Agreement, shall have occurred and be continuing under the
ISDA Master Agreement (if the ISDA Master Agreement shall have terminated,
then this provision shall continue to have effect as if such agreement were
still in force and effect); provided that, for purposes of this Agreement,
the "Threshold Amount" in the ISDA Master Agreement shall be deemed to be
$10,000,000; or
(iv) without the prior written consent of the Remarketing Dealer, the
Indenture (including the Drs.) 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 Drs. or the remarketing procedures;
15
(d) none of the following events shall have occurred after the Remarketing
Dealer elects on the Notification Date to purchase the Drs.:
(i) there shall have occurred any downgrading, or any notice shall have
been given of (A) any downgrading, (B) any intended or potential downgrading
or (C) any review or possible change that does not indicate an improvement,
in the rating accorded any debt securities of, or guaranteed by, the Company
by any "nationally recognized statistical rating organization", as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act;
(ii) trading of any securities of, or guaranteed by, the Company shall
have been suspended on any exchange or in any over-the-counter market;
(iii) a material adverse change, or any development involving a
prospective material adverse change reasonably likely to occur, in or
affecting the general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole, the effect of which is such as to make
it, in the judgment of the Remarketing Dealer, impracticable or inadvisable
to remarket the Drs. or to enforce contracts for the sale of the Drs.;
(iv) if a prospectus is required under the Securities Act to be
delivered in connection with the remarketing of the Drs., the Company shall
fail to furnish to the Remarketing Dealer on the Remarketing Date the
officers' certificate, opinion and comfort letter referred to in subsection
3(f) of this Agreement and such other documents and opinions as Xxxxx Xxxx &
Xxxxxxxx, as special counsel for the Remarketing Dealer may reasonably
require for the purpose of enabling such counsel to pass upon the sale of
Drs. 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;
(v) trading generally shall have been suspended or materially limited
on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers,
Inc., the Chicago Board Options Exchange, the Chicago Mercantile Exchange or
the Chicago Board of Trade; or a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New
York State authorities;
16
(vi) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Remarketing Dealer, is material and adverse and
which, in the judgment of the Remarketing Dealer, makes it impracticable to
remarket the Drs. or to enforce contracts for the sale of the Drs.;
(vii) the Treasury Rate used to determine the Dollar Price on the
Determination Date exceeds the Base Rate; or
(viii) the Remarketing Dealer shall not have received by the required
time on the Determination Date any firm, committed bids to purchase all of
the Drs. in accordance with subsection 4(d) hereof, provided the Remarketing
Dealer has solicited bids pursuant to subsection 4(d);
(e) the Remarketing Dealer shall have received (as soon as practicable
following notification by the Remarketing Dealer to the Company on the
Notification Date of its election to purchase the Drs. and in any event prior to
the Determination Date) a certificate of any of the Chief Financial Officer, the
Treasurer, or the Controller of the Company, satisfactory to the Remarketing
Dealer, dated as of the Notification Date, to the following effect:
(i) the Company has, prior to the Remarketing Dealer's election on the
Notification Date to remarket the Drs., provided the Remarketing Dealer with
notice of all events as required under subsection 3(a) of this Agreement;
(ii) the representations and warranties in this Agreement are true and
correct at and as of the Notification Date; and
(iii) the Company has complied in all material respects with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Notification Date; and
(f) the Remarketing Dealer shall have received on the Remarketing Date a
certificate of any of the Chief Financial Officer, the Treasurer or the
Controller of the Company, satisfactory to the Remarketing Dealer, dated as of
the Remarketing Date, to the following effect:
(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;
17
(ii) the Company has complied in all material respects with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Remarketing Date;
(iii) no material adverse change, or any development involving a
prospective material adverse change reasonably likely to occur, in or
affecting the general affairs, business prospects, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole, shall have occurred since the date of
the most recent financial statements of the Company filed with the
Commission; and
(iv) the conditions specified in clauses 8(c)(i), 8(c)(ii) and
8(c)(iii) and clauses 8(d)(i) and 8(d)(ii) of this Agreement have been
satisfied.
Section 9. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Remarketing
Dealer and each person, if any, who controls the Remarketing Dealer within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, the reasonable legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted):
(i) arising out of the failure to have an effective registration
statement under the Securities Act relating to the Drs., if required, or the
failure to satisfy the prospectus delivery requirements of the Securities
Act because the Company failed to notify the Remarketing Dealer of such
delivery requirement or failed to provide the Remarketing Dealer with a
prospectus for delivery,
(ii) caused by any untrue statement or alleged untrue statement of a
material fact contained in any of the Remarketing Materials or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by
any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with information relating to the
Remarketing Dealer furnished to the Company in writing by the Remarketing
Dealer expressly for use therein, or
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(iii) arising out of any violation by the Company of, or any failure by
the Company to perform any of its obligations under, this Agreement, or
(iv) the acts or omissions of the Remarketing Dealer in connection with
its duties and obligations hereunder, except to the extent due to its gross
negligence or willful misconduct.
(b) The Remarketing Dealer agrees to indemnify and hold harmless the
Company, its directors and its officers and each person who controls the Company
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
the Remarketing Dealer in subsection 9(a)(i) of this Agreement, but only with
reference to information relating to such Remarketing Dealer furnished to the
Company in writing by such Remarketing Dealer expressly for use in any of the
Remarketing Materials.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless
(i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary,
(ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or
(iii) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them.
19
It is understood that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Remarketing
Dealer and its directors and officers shall be designated in writing by it and
any such separate firm for the Company, its directors and its officers who sign
the Registration Statement and such control persons of the Company or authorized
representatives shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment.
(d) Notwithstanding the foregoing subsection 9(c), if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by such subsection 9(c),
the Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. If during any period of time the indemnifying parties are disputing
in good faith the reasonableness of such fees and expenses of counsel, such
period of time shall not be counted in calculating such 30 day period. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
(e) If the indemnification provided for in subsections 9(a) and 9(b) is
unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to, then each Indemnifying Person, in
lieu of indemnifying such Indemnified Person thereunder, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities (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, from the remarketing of the Drs. or (ii if the
allocation provided by clause (i) above is not permitted by applicable law, in
such propor tion 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 the Remarketing Dealer, on the other, in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company, on the one hand, and the
20
Remarketing Dealer, on the other, shall be deemed to be in the same respective
proportions as the aggregate principal amount of the Drs. bears to the amount,
if any, by which the price at which the Drs. are sold by the Remarketing Dealer
in the remarketing exceeds the price paid by the Remarketing Dealer for the Drs.
tendered on the Remarketing Date. The relative fault of the Company on the one
hand and the Remarketing Dealer on the other 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 or by the Remarketing Dealer and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(f) The Company and the Remarketing Dealer agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding para
graph. The amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
(g) Notwithstanding the provisions of this Section 9, in no event shall
the Remarketing Dealer be required to contribute any amount in excess of the
amount by which the total price at which the Drs. remarketed by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Remarketing Dealer 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 9 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified party
at law of in equity.
(h) The indemnity and contribution agreements contained in this Section 9
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement and (ii) any investigation made by or on
behalf of the Remarketing Dealer or any person controlling the Remarketing
Dealer or by
21
or on behalf of the Company, its officers or directors or any other person
controlling the Company.
Section 10. Termination of .
(a) This Agreement shall terminate as to the Remarketing Dealer on the
earliest of
(i) the effective date of the resignation of the Remarketing Dealer
pursuant to Section 6 hereof;
(ii) the occurrence of any event described in clause (i) or (ii) of
subsection 4(g) hereof; or
(iii) the date the Company gives notice of its intention to redeem all
of the outstanding Drs. in accordance with subsection 4(h).
(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,
if:
(i) any of the conditions referred to or set forth in subsection 8(a)
or (b) hereof have not been met or satisfied in full or any of the events
set forth in subsection 8(c) or 8(d) shall have occurred; or
(ii) the Remarketing Dealer determines, in its sole discretion, after
consultation with the Company, that there is material, non-public
information about the Company that is not available to the Remarketing
Dealer which is necessary for it to fulfill its obligations under this
Agreement.
(c) If this Agreement is terminated pursuant to this Section 10, such
termination shall be without liability of any party to any other party, except
that, in the case of a termination resulting from a failure to observe the
conditions set forth in subsections 8(a) or 8(b), or the occurrence of any of
the events set forth in subsection 8(c) or clauses 8(d)(i) through 8(d)(iv), the
Company shall reimburse the Remarketing Dealer for all of its reasonable out-of-
pocket expenses, including the reasonable fees and disbursements of counsel for
the Remarketing Dealer. Section 9 and subsections 3(f), 4(h), 10(c) and 10(d)
shall survive such termination and remain in full force and effect.
22
(d) Upon:
(i) the termination of this Agreement pursuant to subsection 10 (except
as a result of an event described in subsection 8(d)(vii)); or
(ii) a repurchase by the Company of any Drs. due to a failure by the
holder thereof to deliver the Drs. to the Remarketing Dealer against payment
therefor in connection with a mandatory tender;
then, upon the request of the Remarketing Dealer, the Company shall pay to the
Remarketing Dealer, in same-day funds by wire transfer to an account designated
by the Remarketing Dealer, the Call Price in respect of the Drs. that have
become Drs. Unavailable for Remarketing as result of clause (i) or (ii). The
Call Price for any Drs. Unavailable for Remarketing shall be paid as soon as
practicable after the Remarketing Dealer has determined the Call Price and
notified the Company of the Call Price, but in any case no later than the
earlier of (x) three Business Days after written notification to the Company and
(y) the Remarketing Date.
The Remarketing Dealer shall promptly notify the Company of the Call Price
for any Drs. Unavailable for Remarketing 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 11. Remarketing Dealer's 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 or to any beneficial owner or holder of Drs.
in its individual capacity or as Remarketing Dealer for any action or failure to
act in connection with the remarketing or otherwise, except to the extent
finally judicially determined to be due primarily to its gross negligence or
willful misconduct.
23
Section 12. Governing Law.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the conflicts of laws
provisions thereof.
Section 13. 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 Drs. are outstanding or the
completion of the remarketing of the Drs.
Regardless of any termination of this Agreement pursuant to any of the
provisions hereof, the obligations of the Company pursuant to Section 9 and
subsections 3(f), 4(h), 10(c) and 10(d) hereof shall remain operative and in
full force and effect until fully satisfied.
Section 14. 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. The rights and obligations of the Remarketing Dealer
hereunder may not be assigned or delegated to any other person (other than an
affiliate of the Remarketing Dealer) 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 other indemnified party to the extent provided in Section 9
hereof. The terms "successors" and "assigns" shall not include any purchaser of
any Drs. merely because of such purchase.
Section 15. 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.
24
Section 16. 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 17. 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 18. Amendments; Waivers.
This Agreement may be amended or portions thereof may be waived by any
instrument in writing signed by each of the parties hereto so long as this
Agreement as amended or the provisions as so waived are not inconsistent with
the Indenture in effect as of the date of any such amendment or waiver.
Section 19. Notices.
Unless otherwise specified, any notices, requests, consents or other
communications given or made hereunder or pursuant hereto shall be made in
writing (which may include facsimile or other electronic transmission) and shall
be deemed to have been validly given or made when delivered or, if earlier,
three days after it was mailed, registered or certified mail, return receipt
requested and postage prepaid, addressed as follows:
(a) to the Company:
Frontier Corporation
000 Xxxxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxxxx Xxxx
Facsimile No.: (000) 000-0000
25
with a copy to:
Frontier Corporation
000 Xxxxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. XxXxx, Esq.
Facsimile No.: (000) 000-0000
(b) to JPMSI:
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department
Facsimile No.: (000) 000-0000
or to such other address as the Company or the Remarketing Dealer shall specify
in writing.
26
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.
FRONTIER CORPORATION
By /s/ Xxxxxx Xxxx
--------------------------------
Name: Xxxxxx Xxxx
Title: Treasurer
X.X. XXXXXX SECURITIES INC.
By /s/ Xxxxx Xxxxxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Vice President
27
