EXHIBIT 4.6
FORM OF
, dated as of June [ ], 2002 (the "") by and among Provident Financial Group, Inc., a company duly
organized and existing under the laws of the State of Ohio (the "Company"), The
Provident Bank, an Ohio state-chartered member bank of the Federal Reserve
System (the "Bank"), PFGI Capital Corporation, a corporation organized under the
laws of the State of Maryland (the "REIT"), X.X. Xxxxxx Trust Company, National
Association, a banking corporation organized and existing under the laws of the
United States, not individually but solely as Forward Purchase Contract Agent
and as attorney-in-fact of the Holders of Forward Purchase Contracts (each as
defined in the Forward Purchase Contract Agreement (as defined herein)) and
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the
"Remarketing Agent" or "Xxxxxxx Xxxxx").
WITNESSETH:
WHEREAS, the Company and the REIT are issuing concurrently with the
execution of this $150,000,000 (or up to $172,500,000 if
the overallotment option is exercised in full) aggregate Stated Amount of PRIDES
(the "PRIDES") under the Forward Purchase Contract Agreement, dated as of the
date hereof, by and among the Forward Purchase Contract Agent, the Company and
the REIT (the "Forward Purchase Contract Agreement"); and
WHEREAS, the PRIDES consist of 6,000,000 (or 6,900,000 if the
overallotment option is exercised in full) units referred to as "Income PRIDES";
and
WHEREAS, the REIT is issuing concurrently in connection with the Income
PRIDES 6,000,000 shares (or 6,900,000 if the overallotment option is exercised
in full) of Series A Non-Cumulative Preferred Stock with a liquidation
preference of $25 (the "REIT Preferred Stock") having an aggregate liquidation
preference of $150,000,000 (or $172,500,000 if the overallotment option is
exercised in full); and
WHEREAS, in the event of an Automatic Exchange (as defined in the
Forward Purchase Contract Agreement), each share of REIT Preferred Stock will be
exchanged for one newly issued share of Series A preferred stock of the Bank
(the "Bank Preferred Stock" and, together with the REIT Preferred Stock, the
"PRIDES Preferred Stock") except under limited circumstances described in the
Forward Purchase Contract Agreement; and
WHEREAS, the PRIDES Preferred Stock forming a part of the Income PRIDES
will be pledged pursuant to the Pledge Agreement (as amended or supplemented
from time to time, the "Pledge Agreement"), dated as of the date hereof, by and
among the Company, X.X. Xxxxxx Trust Company, National Association, as
collateral agent (the "Collateral Agent"), and the Forward Purchase Contract
Agent, to secure an Income PRIDES holder's obligations under the related Forward
Purchase Contract on the Forward Purchase Contract Settlement Date; and
WHEREAS, the PRIDES Preferred Stock of the Income PRIDES holders who do
not elect to settle their Forward Purchase Contracts in cash will be remarketed
by the Remarketing
Agent on the fifth Business Day immediately preceding August 17, 2005 (the
"Remarketing Date"); and
WHEREAS, in the event of a Successful Remarketing (as defined in the
Forward Purchase Contract Agreement), the applicable dividend rate on the shares
of PRIDES Preferred Stock that have been remarketed will be reset on the
Remarketing Date to the Reset Rate to be determined by the Reset Agent as the
rate that such shares of PRIDES Preferred Stock should bear in order for such
PRIDES Preferred Stock to have an approximate market value on the reset date of
100.5% of the liquidation preference of such shares of PRIDES Preferred Stock
(which Reset Rate will become effective on the Forward Purchase Contract
Settlement Date); provided that in the determination of such Reset Rate, the
REIT or the Bank (as applicable) shall, if applicable, limit the Reset Rate to
the maximum rate permitted by applicable law; and
WHEREAS, the Bank and the REIT have requested Xxxxxxx Xxxxx to act as
the Reset Agent and as the Remarketing Agent, and as such to perform the
services described herein; and
WHEREAS, Xxxxxxx Xxxxx is willing to act as Reset Agent and Remarketing
Agent and as such to perform such duties on the terms and conditions expressly
set forth herein;
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
Section 1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Forward Purchase
Contract Agreement or, if not therein defined, the Pledge Agreement.
Section 2. Appointment and Obligations of Remarketing Agent.
(a) The Bank and the REIT hereby appoint Xxxxxxx Xxxxx and Xxxxxxx
Xxxxx hereby accepts such appointment, (i) as the Reset Agent to determine in
consultation with the REIT, or, in the event of an Automatic Exchange, the Bank
(the REIT or the Bank, as the case may be, the "Issuer"), in the manner provided
for herein and in the Amended and Restated Articles of Incorporation of the
Issuer with respect to the PRIDES Preferred Stock, (1) the Reset Rate that, in
the opinion of the Reset Agent, will, when applied to the remarketed shares of
PRIDES Preferred Stock, enable such PRIDES Preferred Stock to have an
approximate market value on the Remarketing Date of 100.5% of the liquidation
preference of such PRIDES Preferred Stock; provided, that the Issuer by notice
to the Reset Agent prior to the Forward Purchase Contract Settlement Date,
shall, if applicable, limit the Reset Rate so that it does not exceed the
maximum rate permitted by applicable law, and (ii) as the exclusive Remarketing
Agent (subject to the right of Xxxxxxx Xxxxx to appoint additional remarketing
agents hereunder as described below) to remarket the PRIDES Preferred Stock that
is, at the Remarketing Date, part of an Income PRIDES if the holder thereof has
failed to notify the Forward Purchase Contract Agent, on or prior to the seventh
Business Day immediately preceding the Forward Purchase Contract Settlement
Date, of its intention to settle the related Forward Purchase Contracts through
Cash Settlement. In connection with the remarketing contemplated hereby, the
Remarketing Agent will enter into a Remarketing Underwriting Agreement (the
"Remarketing Underwriting Agreement") among the Issuer, the Company and the
Forward Purchase Contract Agent, which
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shall either be (i) substantially in the form attached hereto as Exhibit A (with
such changes as the Issuer and the Remarketing Agent may agree upon, it being
understood that changes may be necessary in the representations, warranties,
covenants and other provisions of the Remarketing Underwriting Agreement due to
changes in law or facts and circumstances or in the event that Xxxxxxx Xxxxx is
not the sole remarketing agent, and with such further changes therein as the
Remarketing Agent may reasonably request, or (ii) in such other form as the
Remarketing Agent may reasonably request, subject to the approval of the Company
and the Issuer (such approval not to be unreasonably withheld). Anything herein
to the contrary notwithstanding, Xxxxxxx Xxxxx shall not be obligated to act as
Remarketing Agent or Reset Agent hereunder unless the Remarketing Underwriting
Agreement is in form and substance reasonably satisfactory to Xxxxxxx Xxxxx. The
REIT and the Bank agree that Xxxxxxx Xxxxx shall have the right, on 15 Business
Days notice to the Issuer to appoint one or more additional remarketing agents
so long as any such additional remarketing agents shall be reasonably acceptable
to the Issuer. Upon any such appointment, the REIT or the Bank, as applicable,
shall promptly notify the Collateral Agent and the parties shall enter into an
appropriate amendment to this Agreement to reflect the addition of any such
remarketing agent.
(b) Pursuant to the Remarketing Underwriting Agreement, the Remarketing
Agent, either as sole remarketing agent or as representative of a group of
remarketing agents appointed as aforesaid, will agree, subject to the terms and
conditions set forth herein and therein, to use its reasonable efforts to (i)
remarket, on the fifth Business Day immediately preceding the Forward Purchase
Contract Settlement Date (the "Remarketing"), the shares of PRIDES Preferred
Stock that the Collateral Agent shall have notified the Remarketing Agent have
been tendered for, or otherwise are to be included in, the Remarketing, at a
price of approximately 100.5% of the liquidation preference of such PRIDES
Preferred Stock. Notwithstanding the preceding sentence, the Remarketing Agent
shall not remarket any PRIDES Preferred Stock for a price less than the
aggregate liquidation preference of such PRIDES Preferred Stock (the "Minimum
Remarketing Price"). After deducting the fee specified in Section 3 below, the
proceeds of such Remarketing shall be paid to the Collateral Agent in accordance
with Section 4.6 of the Pledge Agreement and Section 5.2 of the Forward Purchase
Contract Agreement (each of which Sections are incorporated herein by
reference). The right of each holder of Income PRIDES to have PRIDES Preferred
Stock included in such Income PRIDES tendered for the Remarketing shall be
limited to the extent that (i) the Remarketing Agent conducts a Remarketing
pursuant to the terms of this Agreement, (ii) PRIDES Preferred Stock tendered
have not been called for redemption, (iii) the Remarketing Agent is able to find
a purchaser or purchasers for tendered PRIDES Preferred Stock at a price of not
less than the Minimum Remarketing Price, and (iv) such purchaser or purchasers
deliver the purchase price therefor to the Remarketing Agent as and when
required.
(c) It is understood and agreed that neither the Remarketing Agent nor
the Reset Agent shall have any obligation whatsoever to purchase any PRIDES
Preferred Stock in the Remarketing or otherwise, and shall in no way be
obligated to provide funds to make payment upon tender of PRIDES Preferred Stock
for remarketing or to otherwise expend or risk their own funds or incur or be
exposed to financial liability in the performance of their respective duties
under this Agreement or the Remarketing Underwriting Agreement, and, without
limitation of the foregoing, the Remarketing Agent shall not be deemed an
underwriter of the remarketed PRIDES Preferred Stock. Neither the Company, the
REIT nor the Bank shall be obligated in any
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case to provide funds to make payment upon tender of shares of PRIDES Preferred
Stock for remarketing.
Section 3. Fees. In the event of a Successful Remarketing, the
Remarketing Agent shall retain as a remarketing fee (the "Remarketing Fee") an
amount not exceeding 25 basis points (0.25%) of the aggregate liquidation
preference of the remarketed shares of PRIDES Preferred Stock from any amount
received in connection with such Remarketing in excess of the liquidation
preference of the PRIDES Preferred Stock. In addition, the Reset Agent shall
receive from the Issuer a reasonable and customary fee (the "Reset Agent Fee");
provided, however, that if the Remarketing Agent shall also act as the Reset
Agent, then the Reset Agent shall not be entitled to receive any such Reset
Agent Fee. Payment of such Reset Agent Fee shall be made by the Issuer on the
Remarketing Date, in the case of a Successful Remarketing, in immediately
available funds or, upon the instructions of the Reset Agent, by certified or
official bank check or checks or by wire transfer.
Section 4. Replacement and Resignation of Remarketing Agent.
(a) The Issuer may in its absolute discretion replace Xxxxxxx Xxxxx as
the Remarketing Agent and as the Reset Agent hereunder by giving notice prior to
3:00 p.m., New York City time, on the eleventh Business Day immediately prior to
the Forward Purchase Contract Settlement Date); provided, that the Issuer must
replace Xxxxxxx Xxxxx both as Remarketing Agent and as Reset Agent unless
Xxxxxxx Xxxxx shall otherwise agree. Any such replacement shall become effective
upon the appointment of a successor by the Issuer to perform the services that
would otherwise be performed hereunder by the Remarketing Agent and the Reset
Agent. Upon providing such notice, the Issuer shall use all reasonable efforts
to appoint such a successor and to enter into a with such
successor as soon as reasonably practicable.
(b) Xxxxxxx Xxxxx may resign at any time and be discharged from its
duties and obligations hereunder as the Remarketing Agent and/or as the Reset
Agent by giving notice prior to 3:00 p.m., New York City time on the eleventh
Business Day immediately prior to the Forward Purchase Contract Settlement Date.
Any such resignation shall become effective upon the appointment of a successor
by the Issuer to perform the services that would otherwise be performed
hereunder by the Remarketing Agent and/or the Reset Agent. Upon receiving notice
from the Remarketing Agent and/or the Reset Agent that it wishes to resign
hereunder, the Issuer shall appoint such a successor and enter into a
with it as soon as reasonably practicable.
Section 5. Dealing in the Securities. Each of the Remarketing Agent and
the Reset Agent, when acting hereunder or, in the case of the Remarketing Agent,
under the Remarketing Underwriting Agreement, or when acting in its individual
or any other capacity, may, to the extent permitted by law, buy, sell, hold or
deal in any of the PRIDES Preferred Stock, Growth PRIDES, Income PRIDES or any
other securities of the Company, the REIT and the Bank. With respect to any
PRIDES Preferred Stock, Growth PRIDES, Income PRIDES or any other securities of
the Company, the REIT and the Bank owned by it, each of the Remarketing Agent
and the Reset Agent may exercise any vote or join in any action with like effect
as if it did not act in any capacity hereunder. Each of the Remarketing Agent
and the Reset Agent, in its
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individual capacity, either as principal or agent, may also engage in or have an
interest in any financial or other transaction with the Company, the REIT and
the Bank as freely as if it did not act in any capacity hereunder.
Section 6. Registration Statement and Prospectus.
(a) In connection with the Remarketing, if and to the extent required
in the view of counsel (which need not be an opinion but shall be expressed in
writing) for the Remarketing Agent and the Issuer by applicable law, regulations
or interpretations in effect at the time of such Remarketing, the Issuer (i)
shall use reasonable efforts to have a registration statement relating to the
PRIDES Preferred Stock effective under the Securities Act of 1933, as amended
(the "1933 Act") prior to the fifth Business Day immediately preceding the
closing date with respect to the remarketing (the "Remarketing Closing Date"),
(ii) if requested by the Remarketing Agent, shall furnish a current preliminary
prospectus and, if applicable, a current preliminary prospectus supplement to be
used by the Remarketing Agent in the Remarketing not later than ten Business
Days prior to the Remarketing Closing Date (or such earlier date as the
Remarketing Agent may reasonably request) and in such quantities as the
Remarketing Agent may reasonably request, and (iii) shall furnish a current
final prospectus and, if applicable, a final prospectus supplement to be used by
the Remarketing Agent in the Remarketing not later than the third Business Day
immediately preceding the Remarketing Closing Date in such quantities as the
Remarketing Agent may reasonably request, and shall pay all expenses relating
thereto.
(b) If, in connection with the Remarketing, it shall not be possible,
in the view of counsel (which need not be an opinion but shall be expressed in
writing) for the Remarketing Agent and the Issuer under applicable law,
regulations or interpretations in effect at the time of such Remarketing to
register the offer and sale of the shares of PRIDES Preferred Stock under the
1933 Act as otherwise contemplated by this Section 6, the Issuer (i) shall use
reasonable efforts to take, or cause to be taken, all action and to do, or cause
to be done, all things necessary, proper and advisable to permit and effectuate
the offer and sale of the PRIDES Preferred Stock in connection with the
Remarketing without registration under the 1933 Act pursuant to an exemption
therefrom, if available, including the exemption afforded by Rule 144A under the
rules and regulations promulgated under the 1933 Act by the Securities and
Exchange Commission, (ii) if requested by the Remarketing Agent shall furnish a
current preliminary remarketing memorandum to be used by the Remarketing Agent
in the Remarketing not later than ten Business Days prior to the Remarketing
Closing Date (or such earlier date as the Remarketing Agent may reasonably
request) and in such quantities as the Remarketing Agent may reasonably request,
and (iii) shall furnish a current final remarketing memorandum to be used by the
Remarketing Agent in the Remarketing not later than the third Business Day
immediately preceding the Remarketing Closing Date in such quantities as the
Remarketing Agent may reasonably request, and shall pay all expenses relating
thereto.
(c) The Issuer shall also take all such actions as may (upon advice of
counsel to the Issuer) be necessary or desirable under applicable federal and
state banking regulations and state securities or blue sky laws in connection
with the Remarketing.
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Section 7. Conditions to the Remarketing Agent's Obligations.
The obligations of the Remarketing Agent and the Reset Agent under this
Agreement and, in the case of the Remarketing Agent, the Remarketing
Underwriting Agreement, shall be subject to the terms and conditions of this
Agreement and the Remarketing Underwriting Agreement, including, without
limitation, the following conditions: (i) the PRIDES Preferred Stock tendered
for or otherwise to be included in the Remarketing have not been called for
redemption, (ii) the Remarketing Agent is able to find a purchaser or purchasers
for tendered shares of PRIDES Preferred Stock at a price not less than 100% of
the liquidation preference thereof, (iii) the Forward Purchase Contract Agent,
the Collateral Agent, the Custodial Agent, the Company and the Issuer shall have
performed their respective obligations in connection with the Remarketing
pursuant to the Forward Purchase Contract Agreement, the Pledge Agreement, this
Agreement and the Remarketing Underwriting Agreement (including, without
limitation, giving the Remarketing Agent notice of the aggregate liquidation
preference of the PRIDES Preferred Stock to be remarketed, no later than 10:00
a.m., New York City time, on the sixth Business Day prior to the Forward
Purchase Contract Settlement Date, (iv) the accuracy of the representations and
warranties of the Company, the REIT and the Bank included and incorporated by
reference in this Agreement and the Remarketing Underwriting Agreement or in
certificates of any officer of the Company, the REIT or the Bank or any of their
respective subsidiaries delivered pursuant to the provisions included or
incorporated by reference in this Agreement or the Remarketing Underwriting
Agreement, (v) the performance by the Company, the REIT and the Bank of their
covenants and other obligations included and incorporated by reference in this
Agreement and the Remarketing Underwriting Agreement, and (vi) the satisfaction
of the other conditions set forth and incorporated by reference in this
Agreement and the Remarketing Underwriting Agreement.
Section 8. Termination of . This Agreement shall
terminate as to the Remarketing Agent and/or the Reset Agent on the effective
date of its replacement pursuant to Section 4(a) hereof or pursuant to Section
4(b) hereof. Notwithstanding any such termination, the obligations set forth in
Section 3 hereof shall survive and remain in full force and effect until all
amounts payable under said Section 3 shall have been paid in full; provided,
however, that if any Reset Agent resigns prior to a successful remarketing, then
the obligations set forth in Section 3 hereof shall not survive the termination
of this Agreement and no fee shall be payable to such Reset Agent in such
capacity. In addition, each former Remarketing Agent and Reset Agent shall be
entitled to the rights and benefits under Section 10 of this Agreement,
notwithstanding the replacement or resignation of such Remarketing Agent or
Reset Agent.
Section 9. Remarketing Agent's Performance; Duty of Care. The duties
and obligations of the Remarketing Agent and the Reset Agent shall be determined
solely by the express provisions of this Agreement and in the case of the
Remarketing Agent, the Remarketing Underwriting Agreement and Section 5.2(e) of
the Forward Purchase Contract Agreement. No implied covenants or obligations of
or against the Remarketing Agent or the Reset Agent shall be read into this
Agreement or, in the case of the Remarketing Agent, the Remarketing Underwriting
Agreement or and Section 5.2(e) of the Forward Purchase Contract Agreement. In
the absence of bad faith on the part of the Remarketing Agent or the Reset
Agent, as the case may be, the Remarketing Agent and the Reset Agent each may
conclusively rely upon any document furnished to it which purports to conform to
the requirements of this Agreement as to
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the truth of the statements expressed herein. Each of the Remarketing Agent and
the Reset Agent shall be protected in acting upon any document or communication
reasonably believed by it to be signed, presented or made by the proper party or
parties. Neither the Remarketing Agent nor the Reset Agent shall have any
obligation to determine whether there is any limitation under applicable law on
the Reset Rate on the remarketed shares of PRIDES Preferred Stock or, if there
is any such limitation, the maximum permissible Reset Rate on the remarketed
shares of PRIDES Preferred Stock, and they shall rely solely upon written notice
from the Issuer which the Issuer agrees to provide, if necessary, prior to the
tenth Business Day before the Forward Purchase Contract Settlement Date) as to
whether there is any such limitation and, if so, the maximum permissible Reset
Rate. Neither the Remarketing Agent nor the Reset Agent shall incur any
liability under this Agreement to any beneficial owner or holder of PRIDES
Preferred Stock, or other securities, either in its individual capacity or as
Remarketing Agent or Reset Agent, as the case may be, for any action or failure
to act in connection with the Remarketing or otherwise in connection with the
transactions contemplated by this Agreement, except to the extent that it shall
have been determined by a court of competent jurisdiction by final and
nonappealable judgment that such liability has resulted from the willful
misconduct, bad faith or gross negligence of the Remarketing Agent or the Reset
Agent or by their failure to fulfill in any material respect their express
obligations hereunder. The provisions of this Section 9 shall survive any
termination of this Agreement and shall also continue to apply to every
Remarketing Agent and Reset Agent notwithstanding their resignation or removal.
Section 10. Indemnification and Contribution.
(a) The Company and the Issuer agree, jointly and severally to
indemnify and hold harmless the Remarketing Agent, the Reset Agent and their
respective directors, officers, employees, agents, affiliates and each person,
if any, who controls the Remarketing Agent or the Reset Agent within the meaning
of either Section 15 of the 1933 Act, as amended (the "1933 Act"), or Section 20
of the Securities Exchange Act of 1934, as amended (the "1934 Act") (the
Remarketing Agent, the Reset Agent and each such person or entity being an
"Agent Indemnified Party"), as follows:
(i) from and against any and all losses, claims, damages,
liabilities and expenses whatsoever, joint or several, as incurred, to
which such Agent Indemnified Party may become subject under any
applicable federal or state law, or otherwise, and related to, arising
out of, or based on (A) the failure to have an effective Registration
Statement under the 1933 Act relating to the PRIDES Preferred Stock, if
required, or the failure to satisfy the prospectus delivery
requirements of the 1933 Act because the Company and the Issuer failed
to provide the Remarketing Agent with a Prospectus (as defined in the
Remarketing Underwriting Agreement) for delivery, or (B) any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (as defined in the Remarketing Underwriting
Agreement) or any amendment thereto (including any information deemed
to be a part of the Registration Statement at the time it became
effective pursuant to paragraph (b) of Rule 430A under the 1933 Act, if
applicable), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or (C) any untrue statement or
alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus, or any amendment or
supplement thereto, or
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the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (D) any
untrue statement or alleged untrue statement of a material fact
contained in any preliminary remarketing memorandum or any final
remarketing memorandum, or any amendment or supplement thereto, or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light or the
circumstances under which they were made, not misleading, or (E) any
untrue statement or alleged untrue statement of a material fact
contained in any other documents (including, without limitation, any
documents incorporated or deemed to be incorporated by reference in
any such information or documents) provided by the Company and the
Issuer for use in connection with the remarketing of PRIDES Preferred
Stock or any of the transactions related thereto, or (F) any breach by
the Company, the REIT or the Bank of any of the representations,
warranties or agreements included or incorporated by reference in this
Agreement, or (G) any failure by the Company, Issuer to make or
consummate the remarketing of PRIDES Preferred Stock (including,
without limitation, any Failed Remarketing) or the withdrawal,
rescission, termination, amendment or extension of the terms of such
remarketing, or (H) any failure on the part of the Company, the REIT
or the Bank to comply, or any breach by the Company, the REIT or the
Bank of, any of the provisions included or incorporated by reference
in this Agreement, the Forward Purchase Contract Agreement, the Income
PRIDES or the Pledge Agreement (collectively, the "Operative
Documents") or (I) the remarketing of the shares of PRIDES Preferred
Stock or any other transaction contemplated by any of the Operative
Documents, or the engagement of the Remarketing Agent or the Reset
Agent pursuant to, or the performance by the Remarketing Agent or the
Reset Agent of the respective services contemplated by, this
Agreement, whether or not the Remarketing or the reset of the dividend
rate on the remarketed shares of PRIDES Preferred Stock as
contemplated herein actually occur;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever related to, arising out of or based on any matter
described in (i) above; provided that any such settlement is effected
with the written consent of the Company and the Issuer; and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
the Remarketing Agent or the Reset Agent, as the case may be),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever
related to, arising out or based on any matter described in (i) above,
whether or not such Agent Indemnified Party is a party and whether or
not such claim, action or proceeding is initiated or brought by or on
behalf of the Company, the REIT or the Bank to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that none of the Company, the REIT or the Bank shall
be liable under clause (i) (B), (i) (C), (i) (D) or (i) (E) to the
extent any such loss, claim, damage, liability
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or expense arises out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and conformity with
written information furnished to the Company, the REIT or the Bank by
the Remarketing Agent or the Reset Agent expressly for use in the
Registration Statement (or any amendment thereto), any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto)
or any preliminary or final remarketing memorandum (or any amendment
or supplement thereto) or any other documents used in connection with
remarketing of the shares of PRIDES Preferred Stock, as the case may
be; provided, further, that with respect to any untrue statement or
omission of a material fact made in any preliminary prospectus, the
indemnity agreement contained in this Section 10(a) shall not inure to
the benefit of any Agent Indemnified Party to the extent that any such
loss, claim, damage or liability of any Agent Indemnified Party occurs
under the circumstance where (w) the Company, the REIT or the Bank had
previously furnished copies of the Prospectus to the Remarketing
Agent, (x) delivery of the Prospectus was required to be made to such
person, (y) the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission of a material fact
contained in the preliminary prospectus was corrected in the
Prospectus, and (z) there was not sent or given to such person by or
on behalf of the Remarketing Agent or the Reset Agent, as applicable,
at or prior to the written confirmation of the sale of PRIDES
Preferred Stock to such person, a copy of the Prospectus and the
delivery thereof would have constituted a complete defense to such
person's claim in respect of such untrue statement of alleged untrue
statement or omission; provided, further, that none of the Company,
the REIT or the Bank shall be liable under clause (i)(F), (i)(I) or
(i)(I) to the extent that such loss, claim, damage or liability has,
by final judicial determination, resulted from the willful misconduct,
bad faith or gross negligence of the Remarketing Agent or the Reset
Agent.
Other than as set forth in Section 10(b) below, the Company, the REIT
and the Bank agree that no Agent Indemnified Party shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to the Company,
the REIT or the Bank or its respective security holders or creditors relating to
or arising out of the engagement of the Remarketing Agent or the Reset Agent
pursuant to, or the performance by the Remarketing Agent or the Reset Agent of
their respective services contemplated by, this Agreement except to the extent
that any loss, claim, damage, liability or expense is found in a final judgment
by a court of competent jurisdiction to have resulted from the willful
misconduct, gross negligence or bad faith of the Remarketing Agent or the Reset
Agent, as the case may be.
The Company, the REIT and the Bank agree that, without the Remarketing
Agent's prior written consent, they will not settle, compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any action or claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 10(a) (whether or not the
Remarketing Agent or any other Agent Indemnified Party is an actual or potential
party to such claim, action or proceeding), unless such settlement, compromise
or consent (i) includes an unconditional release of each Agent Indemnified Party
from all liability arising out of such litigation, investigation, proceeding,
action or claim and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an Agent Indemnified
Party.
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(b) The Remarketing Agent and the Reset Agent, severally and not
jointly, if such parties are not affiliates, and jointly and severally if such
parties are affiliates at the time of the Remarketing, agree to indemnify and
hold harmless the Company, Issuer, their respective directors and officers who
sign the Registration Statement, and each person, if any, who controls the
Company, the Issuer within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act (the "Company Indemnified Parties") to the same
extent as the foregoing indemnity from the Company and the Issuer to the Agent
Indemnified Parties, but only with reference to information relating to such
Remarketing Agent and Reset Agent furnished to the Company or the Issuer in
writing by such Remarketing Agent or Reset Agent expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto or any other documents used in connection with
the Remarketing of PRIDES Preferred Stock, as the case may be.
Each of the Remarketing Agent and the Reset Agent agrees that, without
the prior written consent the Company and the Issuer, it will not settle,
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any action or claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 10(b)
(whether or not the Company, the REIT or the Bank or any other Company
Indemnified Party is an actual or potential party to such claim, action or
proceeding), unless such settlement, compromise or consent (i) includes an
unconditional release of each Company Indemnified Party from all liability
arising out of such litigation, investigation, proceeding, action or claim and
(ii) does not include a statement as to, or an admission of fault, culpability
or a failure to act by or on behalf of a Company Indemnified Party.
(c) If the indemnification provided for in Section 10(a) or 10(b)
hereof is for any reason unavailable to or insufficient to hold harmless any
party seeking indemnification thereunder (an "Indemnified Party") in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then
the Company and the Issuer on the one hand, and the Remarketing Agent and the
Reset Agent on the other hand, shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such Indemnified
Party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Issuer on the one hand and the
Remarketing Agent and the Reset Agent on the other hand from the remarketing of
PRIDES Preferred Stock contemplated hereby or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Issuer on the one hand
and of the Remarketing Agent and the Reset Agent on the other hand in connection
with the statements, omissions or other matters which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Issuer on the one hand and the Remarketing Agent and the Reset Agent on the
other hand in connection with the remarketing of PRIDES Preferred Stock
contemplated hereby shall be deemed to be in the same respective proportions as
the aggregate liquidation preference of the shares of PRIDES Preferred Stock
which are or are to be remarketed bears to the aggregate fees actually received
by the Remarketing Agent and the Reset Agent under Section 3 hereof. The
relative fault of the Company and the Issuer on the one hand and the Remarketing
Agent and the Reset Agent on the other hand (i) in the case of an untrue or
alleged untrue statement of a material fact or omission
10
or alleged omission to state a material fact, shall be determined by reference
to, among other things, whether such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company and the Issuer on the one hand or by the
Remarketing Agent or the Reset Agent on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission and (ii) in the case of any other action or omission
shall be determined by reference to, among other things, whether such action or
omission was taken or omitted to be taken by the Company and the Issuer on the
one hand, or by the Remarketing Agent or the Reset Agent, on the other hand, and
the parties' relative intent, knowledge, access to information and opportunity
to prevent or correct such action or omission. The Company, the REIT, the Bank,
the Remarketing Agent and the Reset Agent agree that it would not be just and
equitable if contribution pursuant to this Section 10(c) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 10(c). The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an Indemnified Party and referred to above in this Section 10(c) shall be
deemed to include any legal or other expenses incurred by such Indemnified Party
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or any such omission or alleged omission or any other such action or
omission; provided, however, that, to the extent permitted by applicable law, in
no event shall the Remarketing Agent or the Reset Agent be required to
contribute any amount which, in the aggregate, exceeds the aggregate fees
received by them under Section 3 of this Agreement. No investigation or failure
to investigate by any Indemnified Party shall impair the foregoing
indemnification and contribution agreement or any rights an Indemnified Party
may have. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(d) Promptly after receipt by any Indemnified Party of written notice
of any claim or commencement of an action or proceeding with respect to which
indemnification may be sought hereunder, such party will notify the party from
whom indemnification is sought (the "Indemnifying Party") in writing of such
claim or of the commencement of such action or proceeding, but failure to so
notify the Indemnifying Party will not relieve the Indemnifying Party from any
liability which it may have to such party seeking indemnification under this
indemnification and contribution agreement to the extent it is not materially
prejudiced as a result thereof, and in any event will not relieve the
Indemnifying Party from any other liability that it may have to such party. The
Indemnified Party (or the Remarketing Agent in the case of any Agent Indemnified
Party) shall have the right to select counsel in connection with any transaction
for which any Indemnified Party may be entitled to indemnification or
contribution hereunder, provided that in no event shall the Indemnifying Parties
be liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel, for all Indemnified Parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
(e) Anything herein to the contrary notwithstanding, the provisions of
this Section 10, and the rights of the Company, the REIT, the Bank, the
Remarketing Agent, the Reset Agent and
11
the other Indemnified Parties hereunder, shall be in addition to, and not in
limitation of, any rights or benefits (including, without limitation, rights to
indemnification or contribution) which the Company, the REIT, the Bank, the
Remarketing Agent, the Reset Agent or any other Indemnified Party may have under
any other instrument or agreement.
Section 11. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 12. Term of Agreement. Unless otherwise terminated in
accordance with the provisions hereof and except as otherwise provided herein,
this Agreement shall remain in full force and effect from the date hereof until
the first day thereafter on which no PRIDES are outstanding, or, if earlier, the
Business Day immediately following the Forward Purchase Contract Settlement
Date.
Section 13. Successors and Assigns. The rights and obligations of the
Company, the REIT and the Bank hereunder may not be assigned or delegated to any
other person without the prior written consent of Xxxxxxx Xxxxx as the
Remarketing Agent and/or as the Reset Agent. The rights and obligations of
Xxxxxxx Xxxxx as the Remarketing Agent and/or as the Reset Agent hereunder may
not be assigned or delegated to any other person without the prior written
consent of the Company and the Issuer. This Agreement shall inure to the benefit
of and be binding upon the Company, the REIT and the Bank and Xxxxxxx Xxxxx as
the Remarketing Agent and/or as the Reset Agent and their respective successors
and assigns. The terms "successors" and "assigns" shall not include any
purchaser of Securities merely because of such purchase.
Section 14. Headings. Section headings have been inserted in this
Agreement and the Remarketing Underwriting Agreement as a matter of convenience
of reference only, and it is agreed that such section headings are not a part of
this Agreement or the Remarketing Underwriting Agreement and will not be used in
the interpretation of any provision of this Agreement or the Remarketing
Underwriting Agreement.
Section 15. Severability. If any provision of this Agreement or the
Remarketing Underwriting Agreement shall be held or deemed to be or shall, in
fact, be invalid, inoperative or unenforceable as applied in any particular case
in any or all jurisdictions because it conflicts with any provisions of any
constitution, statute, rule or public policy or for any other reason, such
circumstances shall not have the effect of rendering the provision in question
invalid, inoperative or unenforceable in any other case, circumstances or
jurisdiction, or of rendering any other provision or provisions of this
Agreement or the Remarketing Underwriting Agreement, as the case may be,
invalid, inoperative or unenforceable to any extent whatsoever.
Section 16. Counterparts. This Agreement or the Remarketing
Underwriting Agreement may be executed in counterparts, each of which shall be
regarded as an original and all of which shall constitute one and the same
document.
Section 17. Amendments. This Agreement and the Remarketing Underwriting
Agreement may be amended by any instrument in writing signed by the parties
hereto.
12
Section 18. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and confirmed in
writing. All written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered or mailed,
registered or certified mail, return receipt requested and postage prepaid. All
such notices, requests, consents or other communications shall be addressed as
follows: if to the Company, Provident Financial Group, Inc., Xxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxx 00000, Attention: General Counsel, Telecopy:
000-000-0000; if to the REIT, PFGI Capital Corporation, Xxx Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000, Attention: General Counsel, Telecopy: 000-000-0000; if
to the Bank, The Provident Bank, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000,
Attention: General Counsel, Telecopy: 000-000-0000; if to the Remarketing Agent
or Reset Agent (if Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated is the
Remarketing Agent or the Reset Agent), to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, 4 World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Investment Banking, with a copy to Cleary, Gottlieb, Xxxxx and
Xxxxxxxx, 0000 Xxxxxxxxxxxx Xxxxxx X.X., Xxxxxxxxxx, X.X. 00000, Attention:
Xxxxxxx X. Xxxxxxx; and if to the Forward Purchase Contract Agent, to X.X.
Xxxxxx Trust Company, National Association, Chase Financial Tower, Suite 220,
000 Xxxx Xxxxx Xxxx, Xxxxxxxxx, Xxxx 00000, Attention: Institutional Trust
Services, with a copy to JPMorgan Chase Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Institutional Trust Services, or to such other
address as any of the above shall specify to the other in writing.
Section 19. Consent to Jurisdiction; Miscellaneous. Each of the parties
hereto hereby expressly and irrevocably submits to the non-exclusive
jurisdiction of any competent court in the place of its domicile and any United
States Federal or New York State court sitting in the Borough of Manhattan in
The City of New York in any action, suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby to the extent
that such court has subject matter jurisdiction over the controversy, and
expressly and irrevocably waives, to the extent permitted under applicable law,
any immunity from the jurisdiction thereof and any claim or defense in such
action, suit or proceeding based on a claim of improper venue, forum non
conveniens or any similar basis to which it might otherwise be entitled in any
such action, suit or proceeding.
13
IN WITNESS WHEREOF, each of the Company, the REIT, the Bank, the
Forward Purchase Contract Agent and the Remarketing Agent has caused this
Agreement to be executed in its name and on its behalf by one of its duly
authorized officers as of the date first above written.
PROVIDENT FINANCIAL GROUP, INC.
By:
---------------------------------
Name:
Title:
THE PROVIDENT BANK
By:
---------------------------------
Name:
Title:
PFGI CAPITAL CORPORATION
By:
---------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
--------------------------------
Name:
Title:
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
not individually but solely as Forward Purchase Contract
Agent and as attorney-in-fact for the Holders of
Forward Purchase Contracts
By:
--------------------------------
Name:
Title:
Exhibit A to
FORM OF REMARKETING UNDERWRITING AGREEMENT
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
(the "Remarketing Underwriter") hereby agrees to purchase the shares of PRIDES
Preferred Stock (the "PRIDES Preferred Stock"), that have been tendered by the
holders of the Income PRIDES for sale on [ ], 2005.
1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the [
(the "" and, if not defined therein, the] forward purchase
contract agreement (the "Forward Purchase Contract Agreement"), the pledge
agreement (the "Pledge Agreement"), the underwriting agreement (the
"Underwriting Agreement"), each as identified in Schedule I hereto.
[2. Registration Statement and Prospectus. As required (in the view of
counsel (which need not be an opinion but shall be expressed in writing) to the
Remarketing Underwriter, the Company and the Issuer) by applicable law, the
Company or the Issuer, or the Issuer has filed with the Securities and Exchange
Commission, and there has become effective, a registration statement on Form S-3
(No. ), including a prospectus, relating to the PRIDES Preferred Stock. Such
registration statement, as amended to the date of this Agreement, including the
information deemed to be a part thereof pursuant to Rule 430A under the 1933
Act, is hereinafter referred to as the "Registration Statement," the prospectus
included in the Registration Statement is hereinafter referred to as the "Basic
Prospectus" and the Basic Prospectus, as amended or supplemented to the date of
this Agreement to relate to the PRIDES Preferred Stock and to the remarketing of
the PRIDES Preferred Stock, is hereinafter referred to as the "Final Prospectus"
(including in each case all documents incorporated by reference).]
3. Provisions Incorporated by Reference (a) Subject to Section 3(b),
the provisions of the Underwriting Agreement (other than Sections 2, 3, 5(h) and
(i), 6, 7, 9 and 10 thereof) shall be incorporated (as applicable) into this
Agreement and made applicable to the obligations of the Remarketing Underwriter,
except as explicitly amended hereby [(with such changes as the REIT, the Bank,
the Forward Purchase Contract Agent and the Remarketing Agent may agree upon, it
being understood that changes may be necessary in the representations,
warranties, covenants and other provisions hereof due to changes in law or facts
and circumstances and other changes, including changes relating to the offer and
sale of the PRIDES Preferred Stock in connection with the Remarketing without
registration under the 1933 Act)].
(b) With respect to the provisions of the Underwriting Agreement
incorporated herein, for the purposes hereof, (i) all references therein to the
"Underwriter" or "Underwriters" shall be deemed to refer to the Remarketing
Underwriter; (ii) all references therein to the "PRIDES Preferred Stock" which
are the subject thereof shall be deemed to refer to the PRIDES
A-1
Preferred Stock as defined herein; (iii) all references therein to the "Closing
Date" shall be deemed to refer to the Remarketing Closing Date specified in
Schedule I hereto (the "Remarketing Closing Date"); (iv) all references therein
to the "Registration Statement" and the "Prospectus" shall be deemed to refer to
the Registration Statement and the Final Prospectus, respectively, as defined
herein; (v) all references to "this Agreement", "hereof", and "herein" shall
refer to this Remarketing Underwriting Agreement; and (vi) all references to the
"date hereof" shall refer to the date of this Remarketing Underwriting
Agreement.
4. Purchase and Sale; Remarketing Underwriting Fee. Subject to the
terms and conditions and in reliance upon the representations and warranties
herein set forth or incorporated by reference herein and in the Remarketing
Agreement, the Remarketing Agent agrees to use its reasonable efforts to
remarket, in the manner set forth in Section 2(b) of the Remarketing Agreement,
the aggregate liquidation preference of PRIDES Preferred Stock set forth in
Schedule I hereto at a purchase price not less than 100% of the aggregate
liquidation preference of the PRIDES Preferred Stock. In connection therewith,
the registered holder or holders thereof agree, in the manner specified in
Section 5 hereof, to pay to the Remarketing Agent a Remarketing Fee equal to an
amount not exceeding 25 basis points (0.25%) of such aggregate liquidation
preference, payable by deduction from any amount received in connection from
such Remarketing in excess of the aggregate liquidation preference of the PRIDES
Preferred Stock. The right of each holder of PRIDES Preferred Stock to have
PRIDES Preferred Stock tendered for purchase shall be limited to the extent set
forth in the last sentence of Section 2(b) of the Remarketing Agreement (which
is incorporated by reference herein). As more fully provided in Section 2(c) of
the Remarketing Agreement (which is incorporated by reference herein), the
Remarketing Agent is not obligated to purchase any PRIDES Preferred Stock in the
remarketing or otherwise, and none of the Company, the REIT, the Bank, or the
Remarketing Agent shall be obligated in any case to provide funds to make
payment upon tender of PRIDES Preferred Stock for remarketing.
5. Delivery and Payment. Delivery of payment for the remarketed PRIDES
Preferred Stock and payment of the Remarketing Underwriting Fee shall be made on
the Remarketing Closing Date (which shall be the Forward Purchase Contract
Settlement Date) at the location and time specified in Schedule I hereto, which
date and time may be postponed by agreement between the Remarketing Underwriter,
the Company, the Issuer and the registered holder or holders thereof. Delivery
of payment for the remarketed PRIDES Preferred Stock shall be in immediately
available funds by wire transfer to an account or accounts designated by the
Collateral Agent and the registered holder or holders of the remarketed
securities, if applicable, or, if the remarketed PRIDES Preferred Stock are
represented by a Global Security, by any method of transfer agreed upon by the
Remarketing Underwriter and the depositary for the PRIDES Preferred Stock.
It is understood that any registered holder or, if the PRIDES Preferred
Stock are represented by a Global Security, any beneficial owner, that has an
account at the Remarketing Underwriter and tenders its PRIDES Preferred Stock
through such account will not be required to pay any fee or commission to the
Remarketing Underwriter.
A-2
If the PRIDES Preferred Stock are not represented by a Global Security,
certificates for the PRIDES Preferred Stock shall be registered in such names
and denominations as the Remarketing Underwriter may request not less than three
full business days in advance of the Remarketing Closing Date, and the Company
and the Issuer agree to have such certificates available for inspection,
packaging and checking by the Remarketing Underwriter in New York, New York not
later than 1:00 p.m. on the Business Day prior to the Remarketing Closing Date.
6. Notices. Unless otherwise specified, any notices, requests, consents
or other communications given or made hereunder or pursuant hereto shall be made
in writing or transmitted by any standard form of telecommunication, including
telephone, telegraph or telecopy, and confirmed in writing. All written notices
and confirmations of notices by telecommunication shall be deemed to have been
validly given or made when delivered or mailed, registered or certified mail,
return receipt requested and postage prepaid. All such notices, requests,
consents or other communications shall be addressed as follows: if to the
Company, Provident Financial Group, Inc., Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxx 00000, Attention: General Counsel, Telecopy: 000-000-0000; if to the REIT,
PFGI Capital Corporation, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000,
Attention: General Counsel, Telecopy: 000-000-0000; if to the Bank, The
Provident Bank, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, Attention:
General Counsel, Telecopy: 000-000-0000; if to the Remarketing Agent or Reset
Agent (if Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated is the Remarketing
Agent or the Reset Agent), to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, 4 World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Investment Banking, with a copy to Cleary, Gottlieb, Xxxxx and
Xxxxxxxx, 0000 Xxxxxxxxxxxx Xxxxxx X.X., Xxxxxxxxxx, X.X. 00000, Attention:
Xxxxxxx X. Xxxxxxx; and if to the Forward Purchase Contract Agent, to X.X.
Xxxxxx Trust Company, National Association, Chase Financial Tower, Suite 220,
000 Xxxx Xxxxx Xxxx, Xxxxxxxxx, Xxxx 00000, Attention: Institutional Trust
Services, with a copy to JPMorgan Chase Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Institutional Trust Services, or to such other
address as any of the above shall specify to the other in writing.
7. Conditions to Obligations of Remarketing Agent. Anything herein to
the contrary notwithstanding, the parties hereto agree (and the holders and
beneficial owners of PRIDES Preferred Stock will be deemed to agree) that the
obligations of the Remarketing Agent under this Agreement and the Remarketing
Agreement are subject to the satisfaction of the conditions set forth in Section
7 of the Remarketing Agreement (which are incorporated herein by reference), and
to the satisfaction, on the Remarketing Closing Date, of the conditions
incorporated by reference herein from Section 5 (other than clauses (h) and (i)
thereof) of the Underwriting Agreement as modified by Section 3(b) hereof
(including, without limitation, the delivery of opinions of counsel, officers'
certificates and accountants' comfort letters in form and substance satisfactory
to the Remarketing Agent, the accuracy as of the Remarketing Closing Date of the
representations and warranties of the Company included and incorporated by
reference herein and the performance by the Company of its obligations under the
Remarketing Agreement and this Agreement as and when required hereby and
thereby). In addition, anything herein or in the Remarketing Agreement to the
contrary notwithstanding, the Remarketing
A-3
Agreement and this Agreement may be terminated by the Remarketing Agent, by
notice to the Company at any time prior to the time of settlement on the
Remarketing Closing Date, if any of the events or conditions set forth in
Section 9(a) of the Underwriting Agreement, as modified by Section 3(b) hereof,
shall have occurred or shall exist.
8. Indemnity and Contribution. Anything herein to the contrary
notwithstanding, the Remarketing Agent shall be entitled to indemnity and
contribution on the terms and conditions set forth in the Remarketing Agreement.
9. ERISA. Each holder of Income PRIDES which has tendered PRIDES
Preferred Stock for the Remarketing hereby represents that either (i) it is not
a Plan and is not tendering any PRIDES Preferred Stock on behalf of any Plan, or
(ii) (x) its participation in the Remarketing (including all transactions
related thereto) will not result in a non-exempt prohibited transaction under
ERISA or the Code or a violation of any Similar Laws and (y) the Remarketing
Agent is not acting as a fiduciary (within the meaning of Section 3(21) of
ERISA) on behalf of such holder in connection with the Remarketing (including
all transactions related thereto). For purposes hereof:
"Code" means the Internal Revenue Code of 1986, as amended.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.
"Plan" means (i) any employee benefit plan (as defined in Section 3(3) of ERISA)
subject to Title I of ERISA, (ii) any plan described in Section 4975(e)(1) of
the Code subject to Section 4975 of the Code, including individual retirement
accounts or Xxxxx plans, (iii) any entities whose underlying assets include plan
assets by reason of a plan's investment in such entities or otherwise and (iv)
and employee benefit plans which are governmental plans (as defined in Section
3(32) of ERISA), certain church plans (as defined in Section 3(33) of ERISA) and
foreign plans (as described in Section 4(b)(4) of ERISA) which are not subject
to the restrictions or requirements of ERISA or Section 4975 of the Code, but
may be subject to Similar Laws.
"Similar Laws" means any federal, state, local, non-US or other laws or
regulations that are substantially similar to the provisions of ERISA or Section
4975 of the Code.
A-4
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the REIT, the Bank, the Forward Purchase Contract Agent and the
Remarketing Underwriter.
Very truly yours,
PROVIDENT FINANCIAL GROUP, INC.
By:
-------------------------------------
Name:
Title:
THE PROVIDENT BANK
By:
-------------------------------------
Name:
Title:
PFGI CAPITAL CORPORATION
By:
-------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
-----------------------------
Name:
Title:
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
not individually but solely as Forward Purchase Contract
Agent and as attorney-in-fact for the Holders of
Forward Purchase Contracts
By:
-----------------------------
Name:
Title:
A-1
SCHEDULE I
Remarketing Agreement, dated as of June [ ], 2002, by and among Provident
Financial Group, Inc., The Provident Bank, PFGI Capital Corporation, X.X. Xxxxxx
Trust Company, National Association and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated.
Forward Purchase Contract Agreement, dated as of June [ ], 2002, by and among
Provident Financial Group, Inc., The Provident Bank, the PFGI Capital
Corporation, and X.X. Xxxxxx Trust Company, National Association, as forward
purchase contract agent (the "Forward Purchase Contract Agent").
Pledge Agreement, dated as of June [ ], 2002, by and among the Provident
Financial Group, Inc., X.X. Xxxxxx Trust Company, National Association, as
collateral agent (the "Collateral Agent"), and the Forward Purchase Contract
Agent.
Registration Statement No. 333-88446.
Aggregate Liquidation Preference of REIT Preferred Shares: $[ ].
Underwriting Agreement, dated as of June [ ], 2002 among the Provident Financial
Group, Inc., The Provident Bank, PFGI Capital Corporation and Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, as Representative of the several
underwriters named in Schedule B thereto.
Remarketing Underwriting Fee: 0.25% (25 basis points).
Remarketing Closing Date, Time and Location: [Closing Date], [Time] and
[Location].
SCH-I-1
